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"stt_transcript": "Case No. 25-3333 from the Western District of Missouri, United States v. Antwon Tolefree. Mr. Goldberg. Thank you, Your Honor. My name is Dan Goldberg and I represent Mr. Tolefree in this appeal. We bring a single issue on appeal, that is whether the district court erred in its sentence of Mr. Tolefree after revoking his probation. Before I turn to the substance of that issue, I want to turn to the government's motion to dismiss, because I think it raises an important issue, not just in this case, but I think it's a novel issue in the circuit. And that's whether a plea agreement that was entered into the parties in 2021 extends to the revocation sentence here after probation. The government maintains that it does, but it doesn't do so clearly and unambiguously. And I think if we were analyzing a contract between two corporations, for example, the government's argument would fail. But that's not the standard here. Here, the standard is the government has a burden to prove that my client clearly and unambiguously waived his right to appeal that revocation sentence. And I don't think they can even come close to meeting that standard on appeal. We cite to the Draper case in response to the motion to dismiss, and I think that's a good example of where a defendant does meet that high standard. And in that agreement, the defendant, quote, any matter in connection with this prosecution, his conviction, or the components of the sentence, including the length and conditions of supervised release, as well as any sentence imposed upon a revocation of supervised release. So that's really specific. That's not a general appeal waiver. What we have here is a general appeal waiver. The defendant agreed to, quote, expressly waive his right to appeal his sentence. When you read the plea agreement, I think it's unambiguous that that pertains to his sentence in 2021 from that guilty plea. And so I think this court can announce a Breitland rule that general appeal waivers don't reach to revocation sentences years later. The government here concedes that the general plea waiver does not apply to supervised release revocation sentences. But it tries to make a distinction. The Supreme Court held that. Right. That's not a concession. The question is whether that case, whether this is, this is not governed by that case. This is different. Right. Right. So I think why I touch on that is because I think there's no meaningful difference in probation and supervised release in this context. Both have new sentences. Both have new judgments. And after new proceedings under Rule 32.1. And as we pointed out in our Rule 28J letter, which we filed last week. There may be intellectually a difference. I hate to interrupt you. But intellectually, if you have a revocation of a supervision, you are revoking supervision based for the violation of the court's order. And then you go back to sentence consistent with the sentencing law for revocations. But if you look at probation, we are sent back to any sentence that was originally available. And so the question becomes, I think, from a contractual analysis. Is that if we go back in time and we're sitting right there and sentencing based on that conduct alone. Right. And that's the argument that's made. You would say, well, we're sentencing on the previous conduct and that plea agreement ought to apply, perhaps. Right. It was within the contemplation of the parties at that time. Now, if the judge starts making all sorts of findings that are dependent upon the revocation. And say, I'm enhancing for the revocation of probation. And then they're somehow enhancing the sentence as a result of the post-conduct. Then that's kind of not much different than what we see on people who fail to follow their supervised release while they're pending trial, perhaps. Or maybe it's substantially different. And so it seems to me that's the question of first impression for us here. Is it different enough that a different outcome ought to apply? And I know your answer is yes it is. And why is it not like somebody who just messes up on their release pending trial? Right. I think it's a good point, Your Honor. I think we could all agree that the Department of Justice could have said in the agreement, if you revoke your probation, your supervised release, this appeal waiver applies. They could have done that. And they have bright attorneys writing these agreements. They've done it in the past in other cases. So I'm just scratching my head why we would add that language for them. And even just under basic contract principles here, that if this were two corporations, I think that would be unfair to one corporation to add language in an agreement that's not there. And here we have a higher burden. It's their burden to show that it's expressed. And so I think the court's point, though, and your point, Judge, is that supervised release and probation are not identical. And I don't think we have to show that it is in order to prevail here. Unless there's other questions on that. I'm either new school or old school, but I start with the text of 3553, 3565A2, and conclude it's clear on its plain meaning. It's clear on its face. The word sentence? And re-sentence the defendant under subchapter A. Period. I think the problem with that. Well, there aren't that many courts that have messed with this except district courts. Nobody's paid any attention to the plain meaning of the statute? I think the Moonseals case is a case from the Tenth Circuit where en banc, they implicitly reject the government's argument because the government relies very hard on it. The government messed this up. I agree. They should have dripped the plea agreement better. I hope in the future they'll add this to their standard form appeal waiver or forget it. Couldn't agree more. Right. Absolutely the government messed it up. That's the benefit of pursuing it because I think they badly messed up here. But I come back to the plain language of the statute. How is a defendant supposed to know the plain language of the statute if they don't reference it, right? Come on. That's nothing but, that's only an IAC argument and it's not a good one. I think if you want things to be unambiguous, you need to state them in a contract. And so I think that's the most basic point of entering in a contract is don't leave on terms unstated or referenced in another statute that's not referenced in the agreement. We've got AUSAs all over the circuit competing to see who can write the longest and hopefully broadest appeal waiver and dancing heads of pins. I go back to the statute and I'm distressed that we've got a bunch of district courts who look at this and don't even bother to read the statute as far as I can tell. Right. I don't know why we'd go to the statute. I'm not understanding that. Because if you wanted to reference the statute, we should do that in the agreement. No, not reference the statute. The statute covers it. The statute covers it. You don't have to reference it. The breadth of the appeal waiver itself covers the statutes. I think we need to have a meeting of the minds. So I respectfully disagree. Who's going to have a meeting of the minds in the plea bargaining context over this? Why do we need to have a meeting of the minds, Your Honor? Because there's realistic meeting of the minds and there's hindsight recreated no meeting of the minds. I think basic contract principles demonstrate that we should have a meeting of the minds if you're going to deprive people of their rights to appeal. I think the question really is, if you look at we're going to apply subchapter A, the question is, if you want to consider, can you consider all of the conduct that occurs during the period of time that you're on supervision, and is it appropriate not to, right? Because subchapter A, if you look at generally we go there and we're going to do sentencing, we know we can consider if your behavior is poor on your pre-sentence release, right? And so why is the pre-revocation behavior different than the pre-sentence behavior? That's really the issue that I see here. As to the reasonableness of the sentence, Your Honor? Yeah, well, in both, right? I mean, because the waiver itself is very broad, right? But I think it goes to both, whether the waiver's enforceable and the reasonableness of the sentence. See, I don't think the waiver is very broad. There's other cases the government cites too where it says any sentence, any sentence. That's very broad. This just says his sentence. And when you look at the agreement, it has his guidelines in 2021. So I think it's very focused in the past to five years ago. So that's our argument. And I think the Tenth Circuit agrees with us on bonk on this issue. I see I'm out of time. Thank you. Mr. Casey? May it please the Court, Brian Casey on behalf of the United States. Mr. Tolfrey waived an appeal of his sentence. His sentence by statute was sentenced to probation, which is conditional. It is conditional. And if he violates those conditions, then the district court, if it decides to revoke his probation, it resentences him. In CUNY, this court said upon resentencing, an appeal waiver for the original case still applies. So this court's government's position is bound by CUNY. The appeal waiver in this case applies, and this court should dismiss this appeal. Taking it a couple steps below and looking at how the statutes work. Sentence of probation is conditional because it anticipates. It anticipates that the defendant bears the risk of his conduct. He bears the risk of if I don't comply, then I can get any sentence I could have gotten at my original sentencing. It has to be conditional. It's conditional or else there would be due process concerns. I mean, I'm sorry, double jeopardy concerns. And so to avoid those double jeopardy concerns by statute is a conditional sentence. And when he has imposed that sentence at any point, while he's still on probation, it can be revoked. And when it was revoked, the district court then shall resentence him under subchapter A. That is, we go right back to the 3553A factors and the original sentencing procedure. We are right back in a resentencing context at that point. What is the effect of the table for revocation of probation on these kinds of cases if it's only 3553? What's the effect of the guidelines I'm talking about? The guidelines require, so for both revocation of supervised release and revocation of probation, I'm going to talk about that difference in a second. But the guidelines require the district court for revocation of probation to calculate the revocation table. But in Holdsworth, this court said in determining the reasonableness of the sentence, we look at the original sentencing guidelines. So why calculate the probation's guideline list? Why do that? It's an interesting question, Judge. The answer is because the guidelines require it. And had the district court not, we would be here on a procedural error claim. Does it have no relevance to the reasonableness of the sentence? It really does not, Your Honor. Well, I've read those cases. I thought maybe you could answer the question that I had. You're as mystified as I am. Well, I am as mystified because I think Holdsworth has it right. We're not going to put a defendant in a better position when we're going to sentence him for the same crime. And that gets me to the difference between supervised release revocation, which is pretty much all the cases that Tolfrey relies on here, and probation revocation. Statutorily, they're entirely different. They're governed by different statutes. I went through for probation violation. Like I said, by statute, it is a resentencing for the original crime. But effectively, what we're looking at with probation violation is we're looking at a new judgment for the original offenses. Supervised release revocation, you're looking at a different judgment, not an entirely different judgment, for new breaches of the court's trust. Supervised release under Asteris, the court can't even look at the same factors it can look at for a probation violation. Probation violation, it puts us right back determining this defendant's sentence for the crimes to which he pled guilty. It is his sentence, and that is what he waived in his plea agreement, an appeal of his sentence. I'd like to touch on, Judge Erickson, your questions about what do we do with post-adjudication conduct? And as you noted, for every sentencing, there's some look to post-adjudication conduct, because there's some conduct that's relevant from the time that the person either pled guilty or went to trial and the time that the defendant was sentenced. And so we are always, there's a chance that we're going to look at some post-adjudication conduct. Well, the government can't, but the defense can, for the most part. Well, oftentimes, and this is what I think is interesting here, is that this is a resentencing. And the defense has made, typically at a resentencing, the defense wants to be able to look at everything, all of the post-conduct. And this court's law is at hand, because typically that's to the defendant's benefit. Usually when we come back for resentencings, it's because years later, maybe the law has changed. After Johnson, our career criminal, there would be defendants 10, 15 years later, we're coming back to resentence them. And oftentimes, they want to show, here's what our good conduct was. Here's how I behaved in prison. Here's everything that I did well. And they want that consideration of those changes at a resentencing. And under CUNY, the appeal waiver would apply. Here's a circumstance where we're at a resentencing, and we're at a resentencing because bad things happened. Because the defendant violated. The same law applies, though. This is just like a district court looking at in-custody conduct violations at a resentencing when the law changed. I agree with that argument, except that I can't square them 7B14 on the sentencing guidelines with the statute. Because the chart in the sentencing guidelines looks an awful lot like just a regular old revocation chart. We're putting people in the criminal history categories, and we're looking at the underlying revocation conduct. Whereas the sentence tells us, go back and resentence with subchapter A. In what, 1835-65, right? Yes. In A2, right? That's correct, Your Honor. It sends us back, and I'm sitting there going, how do you reconcile that chart? And I haven't studied the commentary, and I really should have. I should have thought about that before I got here. But is there anything in the commentary that would explain how they can be reconciled? I'm trying to figure out how this chart came to be in the guidelines, and what it's explaining, and why it's not in just sort of kind of undermining the statutory direction. Well, Your Honor, I worked from Holdsworth back, and so I went to the guidelines expecting to see what Holdsworth holds. And that is, you go back and you look at the original guidelines, because that's what makes the most sense. I'll be honest, I didn't find it. They're in the same section that provides the same introductory commentary as the revocation guideline, and it still talks about breach of the court's trust as the justification for imposing the sentence, which isn't the case for a probation violation. And so it's been several months since I briefed it, but my recollection was I didn't find anything helpful in the guidelines, because I thought I was going to find something helpful because I wanted to brief it. And I was left with kind of the same puzzle. But I go back to Holdsworth, Michael, to those cases, say, with probation in particular, you look to judge reasonableness by the original guideline, and the district court can look at that violation conduct and weigh the protection of the community heavily. And here, the district court definitely could look at the conduct and weigh the protection of the community heavily and determine a sentence. So you couldn't find a way that the commission itself had reconciled 7B1.4 with the- I didn't. I didn't go back to look at the history. I looked at the plain text of the guidelines, and I didn't, Your Honor. Something's been kicking around in the guidelines for quite some time on this. Whatever, I'll have to do it. Thank you. I looked up another one recently, and it started when the guideline, before the guidelines were born, could find nothing where the commission had ever reconciled or justified its commentary. So there we are. If there are no further questions, the government asks this court to either grant the motion and dismiss this appeal or affirm. Thank you. Thank you. Do you want to take time? Thirty seconds, okay. Thank you, Your Honor. I think I have enough time to make one point and one point only. The government repeatedly referred to this hearing as a resentencing. I think that's just boldly wrong, and I think the Porter case, which we cite in our response, explains why. This is not the same judgment. This is a new judgment after new proceedings under Rule 32, and there's a lot of due process protections. We're in a resentencing. You just come back to court, and all you're talking about is the amount of time here. So I think the government tries to make an analogy. It hasn't responded to Moonseals and how it lost on Boncombe decision in the Tenth Circuit, and I don't think we should have a circuit split on it. Thank you. Thank you. Well, it's a surprisingly tricky issue. No, it's not surprising. Not in the difficult world of sentencing and plea things that you folks deal with all the time. So argument's been helpful, and we'll take the case under advisement."
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"stt_transcript": "25-3151 from the Eastern District of Arkansas, United States v. Candace Milner All right, Ms. Talley, we'll hear from you first. Good morning. My name is Sylvia Talley and I represent the appellate Candace Milner. In August 2023, a confidential source or informant allegedly informed Little Rock Narcotics Detective Christopher Hernandez and Ms. Milner of selling narcotics. Based off that tip, law enforcement started investigating Ms. Milner and surveilling her home. They did so for about five days, but they didn't see any activity indicative of drug trafficking. On August 16, 2023, while surveilling her house, law enforcement asked a C.I. to call Ms. Milner to arrange a drug deal. The C.I. supposedly did so, and sometime later, Ms. Milner left her house with the two Hispanic men that she identified as Chuy and Chury. Not long after the three left the house and drove away, a Little Rock police officer conducted a traffic stop in Ms. Milner's vehicle. He did so because he was informed that he needs to find a reason to stop her because she was under investigation for narcotics. When the officer approached her car, Ms. Milner handed the officer two drugs. Not long after, other law enforcement officers arrived at the scene, and when they arrived, Ms. Milner told them there were more drugs at the house, and she took them to the house and collected them. When they arrived to the house, Ms. Milner led them to the back bedroom. Well, I think it was the middle bedroom. They had a padlock mechanism on the door, and she showed them where they could find the drugs and the firearm underneath the mattress. Subsequently, Ms. Milner was felonly charged and convicted of being a felon in possession of a firearm, possession of milk with intent to deliver, and possession of firearms and others of job-trafficking crimes. The main issues on appeal is whether the admission of the C.I.'s tip that Ms. Milner was selling drugs violated Ms. Milner's right to confrontation. The other issues raised is whether the evidence is sufficient to sustain her conviction and whether the government's improper comments during closing arguments deprived Ms. Milner of the right to a fair trial. As to the confrontation clause violation, the government claims that the C.I.'s, well, the government claims that the officer's testimony, the C.I.'s tip that Ms. Milner, well, the government claims that the officer's testimony that they started investigating Ms. Milner because a confidential informant told them that she was selling narcotics was not for the truth that the matter asserted, but to explain the propriety of the investigation. Ms. Milner maintains that she did not challenge the propriety of the investigation, so the admission of the C.I.'s tip is not warranted, but has she? Isn't she arguing that, you know, the other two folks in the car were the ones that were controlling her and making her do it? Yes. So isn't the tip relevant to explain why the singled her out and so the other two guys? No, I'll get to that. As to those testimony, the government said that they obviously explained the propriety of the investigation, why she was pulled over and arrested, but parts of the tip being admitted, the officer who conducted the traffic stop said he pulled her over for defective taillight and unconfirmed insurance, I believe, and he did so because he was told to find a reason to stop her because she was under investigation for narcotics. I think that testimony alone is sufficient to provide any background information as to why Ms. Milner was pulled over and arrested. So the record belies the government's claim that the C.I. tip was needed to prove why Ms. Milner was pulled over and arrested. It was clearly all for the truth of the matter asserted. Wasn't the jury instructed to the contrary? Yes, they were instructed that they can only consider this evidence for the limited purpose. Yes, for the limited purpose of whether... Go ahead. Well, doesn't that eliminate any confrontation clause problem? And any error, therefore, would just be an evidentiary error, such as a Rule 403 problem or something like that. Why would it be a confrontation clause if the jury was specifically instructed not to consider it for the truth of the matter? Go ahead. I'm sorry for picking up on and interrupting you. Well, I was kind of halting in my question, so I understand. Go ahead. As this Court recently recognized in Simpson, in that case, there was an alternate theory, well, alternate narrative of why the officers conducted the traffic stop in the way they did. I believe in that case, they received a tip that the defendant was in possession of a firearm. So during the traffic stop, they came to the vehicle drunk, guns blazing, and making commands. The defendant offered two alternative narratives or basis of building a background information as to why the T.I.'s tip that he was possessing firearms was not warranted. One alternative was to offer part of the video, the traffic stop video, and show that the defendant was digging around so they could explain why the officers approached the vehicle the way they did. And the other alternative was to omit the whole video. And in that case, this Court found that it violated the confrontation calls to omit the T.I.'s tip, even though the Court gave the same limited instruction that the Court gave here, that the T.I.'s tip was not offered for the truth of the matter asserted, but just to explain basically the propriety of the investigation. What was the rationale? I believe the rationale in Simpson was the main issue in that case was knowing possession, whether the defendant knowingly possessed the firearm, which was found in, I believe, his wife or his girlfriend's purse. And the Court said since Simpson, since in that case, the tip spoke definitively to that element, that even the jury instruction incurred any prejudice. I can give you the site if you would like it. Is it in your brief? It's not in my brief, no, sorry. It came out after my brief. Oh, well, why don't you send us a letter? Will do, AJ. I will do that. Thank you. Okay. As to the sufficiency of the evidence, Ms. Milner's, as to the sufficiency of the evidence, Ms. Milner maintains that she did not exercise dominion or control over the bedroom where the map was found. According to Ms. Milner's testimony, truly and surely, they took control of her home. They converted her bedroom, and they forced her to sleep on the couch. They also put a lock on the bedroom door. In the video, the body cam footage of the officers walking into the home with Ms. Milner, doesn't she describe the bedroom as hers? Doesn't she use the words, my bedroom? Yes, I believe she does use the words, my bedroom, but it is technically her bedroom, but according to Ms. Milner, truly and surely, took control of that bedroom, and they were the ones who put the padlock. It's also a padlock shown on the video, well, padlock mechanism on the door. According to Ms. Milner, truly and surely, put that padlock there to keep her out, so she was sleeping on the couch. What's the error of the district court on that point? Wouldn't this be something for the jury to make conclusions about as to credibility? That is correct. I think it's logical to assume that since they did find her guilty, that they didn't find all of her testimony credible, but we don't know actually what they did find credible or not. I'm trying to think of a scenario where they could find her believable, credible, and convict her. I think just basically, it's her house. It's in her lease. She knew the drugs were there, but the jury think based off that, that that was constructive possession, joint constructive possession, even though she says truly and surely, those were her drugs. They took her room. Those were their firearms, and she only knew where they were because she saw them stored in there. I think based off the constructive possession instruction, a jury could make that conclusion even if they believed her, but we know as this court held in Ramos in joint occupancy cases, if the jury believed her, this would be a joint occupancy case. In joint occupancy cases, mere dominion over the premises is not sufficient. There must be additional evidence they can defend it to the contraband. In Ramos, this court held that the jury could not find, beyond a reasonable doubt, the defendant possessed a firearm that was found underneath a mattress in a bedroom. Even though the defendant was out there at the residence, there was nothing showing that he exercised dominion or control over that bedroom. But Ms. Milner presented all these arguments to the jury, and they still convicted her, right? That is correct, Your Honor. So what evidence was insufficient? Assuming they did believe her, it would be insufficient. But if they didn't believe her, which I can see that logically, if they convicted her, they didn't believe her. That would be. So if they didn't believe her, it's insufficiency of the evidence. If they did believe her, it's insufficiency of the evidence. Thank you. Okay. Thank you for your argument. Ms. Bowen, we'll hear from you. May it please the court? My name is Ashley Bowen, and I represent the United States in the case of United States v. Candace Milner. Counsel, could you pull that mic down? I can't. In fact, I may move this if that helps. Is this any better? Yes. Okay. Would you like me to start over? This court should affirm for three reasons. First, there was sufficient evidence to convict Ms. Milner, where there was credible officer testimony as well as corroborating video footage in the form of body camera. Additionally, the district court did not air or abuse its discretion by allowing limited testimony concerning the CI tip, where it was not for the truth of the matter asserted, but to show the propriety of the investigation, where Milner attacked propriety, and the district court immediately followed it with a limiting instruction. Was the propriety of the investigation put at issue? It was, Your Honor. I would argue that from very beginning of the case and opening statements, the defense stated, you're going to learn about an additional two individuals who are present in that car stop who are the actual real drug dealers and had taken advantage of Milner and had taken over her house and used it to set up shop. That's on page 327 of the transcript. Additionally, during the cross of Officer Nelson, defense counsel asked questions about why Milner was pulled out of the vehicle as opposed to allowed to remain in her vehicle while her information was being checked. If there was any actual concrete evidence that anyone had seen her doing any drug dealing. Additionally, during Detective Shishler's testimony, there were whether the evidence in this case of drugs in the guns were submitted for DNA or fingerprint testing and if any officers had actually seen her dealing drugs. So, Your Honor, I would argue that in that situation, from opening statement, defense theory of this case was always that Ms. Milner didn't have the ability to control or exercise dominion over the drugs in the firearms in this case because she was locked out of her room by Cheery and Chewy. So she was challenging why she was pulled over and why all this investigation was into her when these two men in the back seat were the ones that were taking over her home. At that point, it became necessary for Officer Hernandez to then testify that he did in fact receive a CI tip stating that Milner was selling narcotics at that home. And Your Honor, as the court previously pointed out, there was a limiting instruction that was immediately read afterwards that was fashioned, I believe, after the Brooks case. Your Honor, on that point, in the defense's argument, they relied heavily on the Holmes case. And in the Holmes case, it was a different situation. In that case, the defendant was not claiming impropriety of the investigation but was in fact saying, I didn't reside in that residence. In both the Shores and the Brooks cases, on the contrary, there was an attack as to the propriety of the evidence in the case and therefore that CI tip was appropriate. Additionally, in the Holmes case, what struck me is that there were entire paragraphs that were read from the search warrant affidavit that contained many statements that were made by the CI. In this case, there was one simple statement that was made and it was immediately followed with that limiting instruction. Senators, I would argue that in this situation, it is absolutely more akin to the Shores and Brooks cases as opposed to the Holmes case that decided in the defendant's brief. What about this Simpson case? Are you familiar with it? Your Honor, I'm not familiar. It was not in the briefing. However, just listening to Ms. Talley... Well, go ahead if you want, but I think it'll be more useful if you read the case. I would like to. The one thing I noticed... If she files a letter, you may respond, of course. Thank you, Your Honor. I would note that the one thing I noticed was that the gun was found in the wife's purse. In this case, this was clearly a situation where Milner owned the residence or leased the residence. She was on the lease agreement. She consented to a search of her home. She led officers directly back to what she identified in the video as her room. It was open and unlocked, and she knew exactly where the firearms were, that they were loaded, and that they were next to 66 grams of methamphetamine. If the court has any other questions about that particular issue, I'd be happy to discuss a CI tip. Otherwise, I would move on to the prosecutorial misconduct claims. Your Honor, in Miller's brief, she argues that the prosecutor made improper statements and that it deprived Milner of a fair trial. One of the things that the court, the U.S. Supreme Court, said in United States v. Young is that you can't view a prosecutor's statement standing alone. They must be viewed basically in context, in the context of which they were said. That also includes the defense counsel's statements in closing arguments. In this particular case, during closing argument, the defense stated, as to Officer Nelson, he chose to lie to you all. When he started lying, I tried to ask him additional questions so he could back off that lie. That's on page 785. As to Detective Shishler, he stated, when he thought it was going to hurt their case, he was willing to sit on that stand after he rose his hand and swore to tell the truth and still lie to you all. That's page 788-89. Additionally, during closing arguments, the defense said that Milner was open and honest a total of four different times, and that his client was telling the truth. Your Honor, in rebuttal argument, the prosecutor started talking about the different scenarios. Essentially, you can believe the government's version of the events, you can believe Ms. Milner's version of the events, or you can believe some hybrid where there is a joint occupancy. In this case, he stated that Milner gave a say anything defense when she testified to try to get out of trouble. However, in looking at the context, he immediately followed it by reading the credibility instruction, ultimately leaving the determination of credibility with the jurors in this case. I would argue that that is more akin to the Contento's case, where the court found that the prosecutor's arguments were not improper, and that they were an interpretation of the evidence that ultimately left the conclusion of credibility with the jury. Additionally, as to the blaming Cheery and Chewy defense, the prosecutor stated this was a scapegoat, cop-out, blame-these-two-guys situation. That's what she's trying to do. Her testimony wasn't credible on the stand. However, he immediately followed that by saying, you make that determination when you get back there. Remember, in Vordire, we talked about it. It's not really what I say in argument, it's all about what you heard from the witness stand and the exhibits in front of you. That's page 806. Your Honor, while he did say that Milner absolutely lied on the stand, he immediately followed it in the same breath with, you decide her credibility about what she said on the stand. That's on page 800. Your Honor should argue that in looking at the entire context of the closing arguments and the statements that were made, that this was an interpretation of the evidence presented at trial, and it always left the determination of credibility with the jurors in this case. Additionally, both the prosecutor and the court reminded the jury that closing arguments are not evidence in the case. It's what they heard in the witness stand, and it's the plain air. No, Your Honor. Those particular statements about Milner's, if you're speaking as to Milner's credibility. Well, those, but also the others. Are there any to which there were some? The only objection that was made at the trial was the statement about having a firearm registered in Milner's name, and whether that meant the firearms that were found under the mattress, which they were discussing, or some other firearm. So there was an objection to that, during closing arguments. The other issues were not objected to at the trial court level, so they would be subject to a plain air analysis. Did the prosecutor say at one point, it's a real problem because she absolutely lied on the stand? He did say that, Your Honor, but he immediately said, you decide her credibility about what she said. And therefore what? Therefore it's okay to make the first statement because it was qualified in some way? Your Honor, no, that it's not okay to make the statement. However, when viewed in context, as the Young case says, that the entirety of that context is I'm arguing a personal interpretation of the evidence, much like the Eagle case, but ultimately you decide that for yourselves. If there are any other questions on that point, I'd be happy to answer them. Otherwise, I'll move to sufficiency. Your Honors, there was sufficient evidence in this case to support Milner's convictions. The evidence that came in at trial was that she was under investigation for distributing narcotics, that the officers, the detectives in this case, were conducting surveillance at her house. When the investigation somewhat stalled because she wasn't leaving, they called an individual to order up narcotics from Ms. Milner. Thereafter, she left her residence in her vehicle and she was pulled over by Officer Nelson for a busted taillight and unconfirmed insurance. At that point, she immediately handed Officer Nelson a baggie of marijuana as well as 17 grams of methamphetamine in the baggie. Additionally, when he searched her purse, he found a large wad of cash in her purse that was separate from her wallet. After that, when she was transported back to her residence, she gave consent to search the residence where she was a leaseholder. She led officers directly to her room, which she described as her room, where she pointed out two loaded firearms as well as 66 grams of methamphetamine that were right next to each other in her room. Additionally, there was evidence that she wanted to cooperate with the officers in this case. She talked about buying from AK in the video and there was credible expert testimony. I apologize, Your Honor, I see my time's up. Would you like me to finish my statement or I can sit down? Thank you for your argument. Thank you, I appreciate it. Did Ms. Talley use her time? Yes. All right, very well. Thank you both for your arguments. The case is submitted and the court will file a decision in due course. Thank you, Your Honor. Counsel are excused."
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"stt_transcript": "The first case for argument is case 25-2793, Eastern District of Missouri, United States v. Carl Von Garrett Mr. Schreiner? Good morning May it please the court This appeal concerns four separate issues, a sentencing and trial court error Specifically, Mr. Von Garrett contends that the district court erred when it denied his motion to suppress evidence specifically cell phones that were seized due to a reasonable delay, over a four year delay from the time they were actually seized until the time a warrant was actually sought for those devices Secondly, Mr. Von Garrett argues that the district court erred under 404B by admitting evidence of a prior federal felony drug conviction His third point is that the district court also erred when it assessed him a six-level enhancement on his offense-level sentencing guidelines due to that he had knowledge that the laundered money was from drug proceeds And then finally, his last argument is regarding the forfeiture that the court entered His argument with that is that the amount of the forfeiture was based in part on funds that were no longer available due to no after emission on the part of Mr. Von Garrett These funds were funds that were being used in the action of sting operation for the drug investigation Turning to the specific arguments regarding the failure to suppress the contents, the phone contents Counsel, what do you do with, I think it's Burris on that case I mean, our language is very broad. It says that the delay is immaterial, I think is the language you used That seems to foreclose this argument. Why isn't that correct? Judge, that is correct to hold him in Burris Burris, there are some distinct, you can distinguish Burris, the delay in Burris was eight months, here it's four years I don't think the mere fact that the phones had independent evidentiary value on their own Does away with a Fourth Amendment requirement, the Fourth Amendment analysis The totality of the circumstances be administered Because I think at one point, your constitutional and processory interest has been violated And the district judge did not perform, she just went right to Burris Do you think that applies even if there's independent evidentiary value for the phone? I think it does One of the cases I cited was a case out of the Fourth Circuit, which is kind of interesting That argument was actually raised in that case, and I know that's not controlling authority to this court The United States versus Pratt What the court said, well, we're not going to go into an independent value, it's a phone, okay You can search, what's the delay in getting a warrant to search the phone? Did the court there say there was no independent value for the phone, though? I thought in the Fourth Circuit they said there is no independent value Whereas here the argument is to the contrary I don't think they addressed the independent value issue I think they just said we're not going to go there because it's like a murder weapon I guess maybe you can interpret it that way It's kind of like a murder weapon Obviously we're going to keep a candlestick or whatever That was used in a murder as an independent Its own evidence has its own evidentiary value But I think with this, the phone's contents can be searched The government can present evidence of what's found on the phone In fact, it did that Does it matter why there was the delay? Yeah, I think it deprived Mr. von Gerdt of his possessory interest in the property I mean, for trial continuances or some sort of delay in the investigation Do those factor in? And if so, how? Yeah, I don't think as far as the effect of the delay on trial Or being able to present a defense The defense counsel at the trial did not argue that That it had an impact on their case I think, well, let me back up I do believe the argument was made that, hey, this is dropped on us at the eve of trial The phone evidence You know, you had four years to do this The government didn't give a real Well, it didn't give a reason why it hadn't been searched in four years And in fact, the government at the pre-trial hearing said specifically This should have been done sooner You say he was deprived of his possessory interest Is there any evidence that he attempted to get the phone back? No, Judge, there's not How many phones are we talking here? Well, there's six phones seized and an iPad And your complaint is about all of those or is it just one of those? Well, specifically one because at trial Mr. von Gerdt said that only one of the phones was his So we're just down to the one phone We are, Judge, that's correct And going on to the rest of the argument Is there any more questions on that or I'll move on to the next argument? Hearing none Okay The next issue would be Oh, let me back up though Actually also Mr. von Gerdt did suffer prejudice from the use of the phones Because the government, in its case in chief, entered in Exhibit 31A as one of the exhibits it used And in that there are screenshots from the Samsung phone that had a large number It discussed Air Force and there was also the other thing That was the three-month evidence Which is the software that allows you to automatically do the information from a cell phone But was there evidence that the delay prevented him from examining? That very same evidence or something was lost that he was not able to dig into as a result? That was not an argument made in this report Regarding the 404B evidence This was reserved for appeal Defense counsel did raise this issue And objected to the use of it The government filed a motion limiting it It was a drug conviction that was 16 years old It was for trafficking marijuana It was, you see that in the timeline that we're looking at I believe Mr. von Gerdt, yeah, he entered a plea in 2007 He was released from federal custody in 2014 The supervisor released him in 2018 And the incident offense occurred in 2021 So I think the argument is that there's not I mean the counter argument would be there's not a whole lot of time span between 2018 and 2021 But I think the argument is that these were not the same type of convictions I mean it's not a money laundering conviction I would still say it's remote in time just because it happened 16 years earlier The case is argued as admission of a prior conviction But when you look in the record There was an entire factual stipulation from a previous plea agreement If I understand correctly that was read into the record Was that debated at the district court? In other words, the idea that okay I object to you introducing evidence of my prior conviction But if you do offer it, that's all you get Not all of the factual stipulations? Right, and I believe counsel did object to that I mean it was pretty specific the information that was entered I mean as far as the plea information It talked about drugs, it talked about guns being found I think it referenced a Glock in the plea agreement Pistol, it talked about the amount of cash that was found So I think all those things It was just not a matter of oh you've got a prior conviction We're going to use that to impute your credibility We're going to get into this and say Well that shows motive, intent, and knowledge And I think that's what the district court ended up saying Well we're going to allow this because it shows your motive, intent, and knowledge Where Mr. Von Garrett's defense was well I didn't participate Well did the district court address the distinction between Offering evidence of a prior conviction And offering all of sort of a narrative of Kind of a narrative or a summary of this prior conviction As you say involving firearms, involving frankly other people As well as I read the testimony Yeah Judge, I don't specifically recall that unfortunately I don't remember that being Counsel to the government correct me on that if I'm wrong I don't remember that kind of specific kind of argument in the case And again this really doesn't go to absence of mistake Because Mr. Von Garrett says hey I never participated in this offense And I think it was highly prejudicial again It's just a matter that it's a detailed prior conviction Guns, money, drugs They read the plea agreement twice Did the conviction involve the money The conviction was a drug trafficking conviction So the only way you could get the evidence to the jury about The amount of cash that was involved or money involved Was through this factual stipulation that was read correct That's correct Your Honor That's correct So I don't think any evidence is very prejudicial to Mr. Von Garrett I don't think it was cumulative because it deals with A case that's from 2007 Also I don't think the evidence in the case is necessarily overwhelming There wasn't any specific evidence that Mr. Von Garrett Had actually dropped off, gave money to a specific kind of coverage Or anything more specific like that Going on to claim the 6th level enhancement argument The district court in sentencing Mr. Von Garrett Assesses the 6th level enhancement under U.S. Sentencing Guidelines 2S1.1B1 To do that the court has to find subjective knowledge And it turns on subjective knowledge in Mr. Von Garrett Or his belief, I think reviewing the case There's no direct evidence that direct evidence in the district court In sentencing admitted that There's no statement in the text messages Even if you take the position that the prior conviction was not admissible At trial, would it be admissible at sentencing for the district court To consider a lower standard of proof, lower evidentiary restrictions To say, well, you know, he has been involved in drug trafficking before Involving lots of money, that's probably not I think, oh, I see what you're saying So if I understand your question Judge Is that the fact that he has this prior conviction in sentencing That can be taken into account Because of the preponderance of the evidence standard Because of that prior, that would show you that knowledge Or you would understand that this is a drug trafficking proceeds Is that kind of what you're saying? Yeah, would that be admissible at sentencing Even if, without giving up your argument That it's not admissible at trial? I think it probably would be I think it's possible it would be admissible I mean, but I don't think that though That that in itself, that prior conviction shows I mean, it still has to be subjective knowledge Or belief on the part of the defendant So I don't know how that proves That he knew now, in 2021 That the proceeds were from drug trafficking Because he has a prior conviction I think that's kind of Yeah, I think that's kind of the way I would view that Also, I think what you're saying So I don't think the prior evidence Can provide that missing element of subjective knowledge or belief I think that's the way I would address that And it obviously prejudices Mr. Von Gehrig Because without the six point enhancement The sentencing guidelines would have been 70 to 87 months And with a six level enhancement It would have been 135 to 168 months Mr. Schreiner, do I understand the facts of the case correctly In the sense that it wasn't in fact drug money, was it? It was in fact drug money It was in fact, okay I was under the impression this was a government Yes That this was a government state- Yes, you're talking about the present conviction, correct? Correct Yeah, no, it was I think at most that's what the government proved That it was drug money But I don't think they proved that Mr. Von Gehrig Had the subjective knowledge that it was Okay, but it in fact was government money, right? Yeah, no, it was money from the drug cartel From the drug cartel? Yes, yes And then the government, once that money became The government had the possession I'm trying to remember how it worked You had an agent who Well, they had like dollar bills And you had to read off the number And then one person would bring the money Drop it off And that would go to the money launderer So yes, so the government just allowed the money To go to, I assume, New Mexico Which role did the government play In the steps that you just described? So I believe, if I'm correct They were, there was an undercover agent Who had, was able to get contracts From the drug cartel And they would then be contacted By one of the people who they would do The money drop off to When you say a contract There was discussion sort of a contract Was created or prepared And I wondered what that contract was To launder money, I mean, ultimately So it was a contract between This undercover person Who was kind of a broker And so he was getting the cut To get it from, presumably Your client and other folks To the broker Then the broker would send it on Down to the cartel So it was just one intermediary Between your client, the co-defendants And the cartel? That's correct I see my time's up I'm going to save the last argument for rebuttal If there's any more questions Well, you don't have any time I may give you a minute In rebuttal Mr. Dixon May it please the court Ricardo Dixon on behalf of the United States Your honors, I'd like to address First the argument involving the application Of 2S1.1 and how the district court Handled that As the court is aware The district court was required to find That the defendant in this case Had knowledge that the proceeds Were not just illicit in nature But that they were also But that they were specifically Proceeds derived from drug trafficking activity When looking at the totality of the circumstances In terms of the evidence in this case The government classifies this case as Overwhelming circumstantial evidence Of this defendant's knowledge That the proceeds were in fact drug money Your honors There's been some questions about What this conduct entailed What the investigation entailed In summary, I'd just like to respond that This investigation involved A national investigation Identifying a money laundering organization Out of Mexico And eventually that brought The investigation to St. Louis Where an undercover confidential source Was acting as a money broker From another jurisdiction Sending contracts to St. Louis Where the undercover agents Were acting in that capacity as a broker And then eventually setting up These money drops Where they would receive the money From drug traffickers And then that money would be coordinated To be sent to a United States shelf account Bank account And then eventually down To a money broker in Mexico And so So it was in fact drug proceeds It wasn't like a government sting Where it's government funds Correct, your honor 100% this is drug proceeds This is not money offered from the government And then taken back from the government This is The government's argument at trial Was that these were all funds Derived from the drug trafficking activity In this district And so just to specifically address What proves knowledge here There's three kind of I would say topics That the court relied on here One they had testimony From the case agent from Philadelphia His name was Dale Kitty He provided the overall structure Of what the investigation entailed Speaking as to bulk currency The use of single dollar bills With serial numbers That the undercover officers And these defendants Would engage in To know that they were Transacting with the right folks That the money drops themselves Were linked to the Sinaloa cartel And then testimonies In regards to There was a specific question Asked of that officer What the proceeds entailed And he specifically testified That all the money received And eventually entered Into the shelf account Was in fact drug proceeds So we have this officer Overlaying What the conduct entailed And then next we have an expert Who came in and testified Testified as United States Special Agent Troy Stout Which provided more details To the court in terms of In terms of expert testimony In regards to drug traffickers Utilizing these methods of operation Specifically as to the dollar bills The bulk currency The anonymous nature Of the bulk currency Rather than individuals Utilizing normal banking methods To ultimately launder this Drug money down to Mexico And then finally The evidence of drug trafficking Specifically by this defendant As this court's aware This defendant was ultimately Apprehended on April 14, 2021 In a vehicle In that vehicle There were six cell phones Marijuana, $7,000 in cash And numerous items Belonging to him And a ledger All those items taken together Specifically the phones As this court's aware Through its precedent Established that he was engaged In drug trafficking activity That day On that date That he actually Physically dropped off Over $200,000 To a co-defendant And so I lay out those facts Just so that the It connects to what The district court How the district court Made its finding In terms of citing To the duration of his role It being a highly sophisticated scheme The use of the ledger And as well as recognizing His prior convictions I know Judge Kelly Had a question in regards To the court's use Of that prior conviction In regards to the 404B Which I will address But in regards to the 2S1.1 analysis I believe that the district court Utilized the prior convictions Not to say that prior convictions Equate to knowledge Of the money laundering itself But as an inference To show that This individual Possessed a large amount Of narcotics In the prior conviction Possessed over $350,000 In that prior conviction In one conduct And that inference established That he was knowingly engaging In this money laundering conspiracy And had the knowledge of it Your Honor If there are no other questions I will move on to the next issue And ask that the court Affirm the district court's ruling On 2S1.1 Moving on next To the 404B Prior conviction Involving marijuana I would like to address One question that Judge Kelly Brought up in terms Of the plea agreement The record reflects That during the pretrial hearing The court allowed the parties To confirm in regards to If the issue was involving hearsay That the defense counsel Had brought up Ultimately the defense counsel Objected to the entirety Of the plea agreement But they were given That opportunity To reconcile the hearsay issue While the plea agreement Was read during the trial I think it's important For the court to note That a limited jury instruction Was given here Not once but twice Once before the evidence Of the 404B Came in during the testimony At trial And then secondarily Before the jury went to deliberate On the matter So it was really beyond The conviction You were putting on 404B evidence Of prior acts Yes, Your Honor It is a prior act As this court is well aware Any prior act is Right So it's interesting Because it's been argued As a prior conviction But really It's a prior conviction Plus conduct That has been Pretty explicitly described And so Two or three I don't know Two or three pages maybe Of testimony From the agent Of actual conduct That probably was not required A required element To get the conviction itself It sort of seems like You've got two things Going there I understand the question Your Honor If I misspoke And said act I do meant to Reorient my argument Towards conviction In regards to The facts that were Outlined through the agent In regards to the plea Agreement itself If the court looks At the plea agreement The plea agreement itself And the facts established Therein Establish What What What the substance was In terms As it related To the money Right So there was the Indication of over A hundred kilograms Of marijuana That was self-evident The facts were given To the jury To provide context Because If the prior conviction Was just submitted As possession With intent To distribute A conspiracy To possess And distribute marijuana There's no way For the jury To have learned About the money aspect And here The government's Use of that Of the facts And the conviction itself Was not utilized As a method To say that Because he possessed These drugs And this large Amount of money Before He committed money Laundering What about Wasn't there also Some additional Testimony about Firearms Flight from law Enforcement Someone else Involved Wasn't there other How did that Relate to To his Conduct Relevant to Some 404 B purpose In this Particular Money laundering Case Correct There was Mentioning Of a firearm Other individuals In the house So that Just so that As the courts Aware The facts Discussed A search Warrant At a House It also Spoke to The defendant Law enforcement Attempting to Apprehend the Defendant I believe A day or two Prior Or sometime Prior But specifically In regards to The search warrant Of the house Outlined that It was not Just him in the House There was other Individuals There was this Cash There was These drugs There was An item That appeared To be a And in Regards to The gun Specifically The rest of The plea Agreement Outlines the And So The government The intent Was not To connect Any gun To the Defendant It was To provide The context For the Jury To understand The Conviction In terms Of the Government For Knowledge And intent As This Court Is Aware And Counsel Reiterated This The Defense At Was A General Deny Ability Defense Counsel During The Mentioned When Asked By The District Court What Is The Defense Here In Regards To Figuring Out The Issue To Be Addressed He Said Counsel In Said His Defense Is He Didn't Do It That Iteration Of A Defense Is A General Deny Ability Defense That Causes The Government To Prove Every Single Element Of The Money Laundering To He His Defense Is Deny That Causes Government Laundering Addressed He Said His Defense Is He Didn't Do It That Iteration Of A Defense Prove Of The Money Laundering He His Is He Do That Causes Laundering To He His Defense Government To Prove Every Of The He Didn't It That Causes The Government To Prove Every Laundering To Didn't Do That Laundering To His Defense To Prove Every To Defense To Prove Every To Defense To Prove Every To Prove Every To His Defense That The Was A Substitute But The Ability To Go After Those Things You Have To Go Back And Getting A Order As We Can To Back And Getting A Go Back And Getting A Order As We Can Go Back And A Order As We Can Go Back And Getting A Order As We Can Go Back And Getting A Order As We Can Go Back And As We Can Go be posed a new time limit in terms of four years or an indefinite time period. What we're asking this court to do is apply burrs to these facts, which is the government sees these phones as independent evidence of a crime, and this crime was drug trafficking. The reason it was relevant to this case and why the law enforcement officers seized it at that time was the government needed to prove the specified unlawful activity, which was the conspiracy involving illicit proceeds, which were connected to drug trafficking. That specific purpose, when the government has, as burrs outlines, when the government seizes cell phones or electronic devices for that purpose as evidence in and of themselves, the timeliness question is immaterial because the government has seized that property and doesn't have to search it. The government could have proceeded to trial and stated that the four phones in and of themselves, not as containers to be searched, but just in and of themselves, were evidence of his drugs. So the argument might be that, well, I got this too late. I can't do my own independent, speaking as the defendant, I can't do my own independent investigation of the contents of the tablets and the phones because of this delay. But that would be, would that be then an avenue for the defendant to complain about the delay? Judge Grinner, may I continue with my response? Your Honor, in terms of that hypothetical, I think there's a, there's a, there's different considerations that would have to also be contemplated too. I mean, for a defendant to come to the court and say that he didn't have access to look at the phone themselves, in terms of this case. There's nothing in the record here. I said, do you agree with counsel that, that there's just nothing in the record as to why the government waited, delayed to, delayed in their efforts to look at the contents? Did you agree with his statement on that? I didn't. I don't think that he was misrepresenting what, what the statement was. The statement was that the, the new counsel was appointed for, on behalf of the government as, as trial approached. The government decided to search the phones at that time. That was all on the basis that these phones remained evidence in and of themselves, proceeding from when, the time the defendant was arrested, through indictment, all the way to sentencing. Thank you. If you have no further questions, the government requests that the court, the court affirms and rests at this time. Thank you. Thank you, Mr. Dixon. Mr. Schreiner, I'll allow you a minute. Thank you, Judge Grinner. I was told it's 15 minutes. I'd be done in 15 minutes. It was 15 minutes. Thank you. Just, just very quickly, regarding the forfeiture issue, basically, Mr. von Garrett's argument there is that the government can impose an impersonal judgment for the full amount of funds that it forwarded during the undercover operation. Just briefly, regarding the relief, Mr. von Garrett's asking on the forfeiture case, he's asking that the forfeiture order be vacated, regarding the suppression issue, that, that the case be reversed and remanded for a new trial, on the 404B, that the court reverse and remand for a new trial, and finally, on the sentencing enhancement, that the court vacate the sentence and remand for resentence. Thank you. Thank you, Mr. Schreiner. The court appreciates your appearance today and argument. The case will be submitted and we'll issue an opinion in due course. Thank you, Your Honor. Thank you. "
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"stt_transcript": "25-3263 from the Northern District of Iowa United States v. Darion Halliburton All right, Ms. Jansen, we'll hear from you first. Thank you, and may it please the Court. Your Honors, Mr. Halliburton raises two independently sufficient grounds for vacating the 60-month revocation sentence imposed in this case. First, he submits that the lawful statutory maximum was 36 months rather than the 60 months used by the District Court, and that's because of the interplay between three different statutes and operative court orders. Second, Mr. Halliburton submits that even if five years was the legally permissible revocation sentence, the District Court's decision to impose that sentence rested on an incomplete procedural history, the details of which were highly relevant to the Court's decision and included an Amendment 782 sentence reduction and a prior District Court order specifically finding Mr. Halliburton eligible for Amendment 404 relief and making a finding and adopting findings that his statutory penalties would be changed with benefit of Section 404. Turning to our first argument, Section 3583E3 allows the Court to revoke supervised release and have a defendant serve all or part of that term of original term of supervised release in prison. The statute itself first tells us which offense to examine. It says examine the offense that resulted in the term of supervised release, but it then asks in the present tense what class of felony that offense is in order to determine the penalties. Now, we don't rely on the word is standing alone. However, when we review the plain language of the statute in context with the three relevant statutes at play here and with Judge Reed's earlier Section 404 order, applying the 404 framework to the case, I think it all results in a conclusion that the plain language of the statute combined with the plain language of these other statutes and the revocation considerations require the use of a three-year revocation term here. This begins really the important piece here that is missing in other cases that the government cites is First Step Act Section 404. Congress, of course, back in 2010 changed the crack cocaine penalties but did not make those retroactively applicable to people like Mr. Halliburton who were both prosecuted and sentenced prior to the Fair Sentencing Act's revisions in 2010. The Supreme Court in Darcy upheld that in 2012, but then we flash forward to 2018 and Congress specifically passed a remedial statute making the Fair Sentencing Act's penalties retroactively applicable as if they had been in effect when the covered offense was committed. What's important here is that Judge Reed originally sentenced Mr. Halliburton to 210 months. Pursuant to Amendment 782, she later reduced that sentence to 168 months. Then in 2020, she ruled on Mr. Halliburton's motion for First Step Act Section 404 relief. That required two pieces of analysis. The first piece of analysis, as this court has instructed, is that she had to decide if he was eligible for relief. If so, what are the revised statutory penalties? In fact, Judge Reed found Mr. Halliburton eligible for relief. She found he had in fact committed a covered offense under the Fair Sentencing Act. She found that he was eligible for Section 404 sentence reduction in her discretion. She calculated his advisory guideline range and specifically said at page 3 of Document 52, the statutory range would now be zero to 30 years. In a footnote, she also noted that the Probation Office prepared an amended statutory and guideline calculation. She specifically adopted that guideline calculation. In exercising her discretion whether to reduce Mr. Halliburton's sentence, she opted not to. Part of the reason for that is clearly tied to her prior grant of Amendment 782 relief. Mr. Halliburton's sentence with benefit of Amendment 782 was at the bottom of that new guideline range. He had already received some favor of a reduction. More importantly, the court denied relief because of a plea agreement provision. In her discretion, she specifically noted that the 168-month sentence was within the newly amended statutory penalties of zero to 30 years. It's that congressional piece of the puzzle combined with Judge Reed's order that then decides what the statutory penalties are. Section 3559 says that anything punishable by 25 years or more, in this case zero to 30, is a Class B felony. Under Section 3583E3, we ask what is Mr. Halliburton's offense? It is, in fact, a Class B felony subject to only three years in prison. Even if we do acknowledge that this first issue is raised on a plain error standard of review, there are some other circuit cases, in particular Cotton out of the Seventh Circuit, that have reached a different conclusion. I would like to point out that Cotton was a divided decision. It's our position that the dissent actually is the only analysis that engages with all of the pieces that we've talked about here. All three statutes, Section 404, Section 3559, and Section 3583E3. We, of course, then have a district court order specifically adopting and implementing Congress's direction to apply Section 404 in the Fair Sentencing Act as if it applies today. I do want to point out another thing about Cotton is that it is in tension with an earlier Seventh Circuit decision in the United States Court. What is there for us to look at to show that this was a plain error? Your Honor, I think of the statutory language themselves. Even with disagreement from other circuits, if this Court finds that the statutory language of these statutes plainly leads to the conclusion, which is my position, then you should reverse and send it back with direction that the Court must apply a three-year statutory maximum. However, even if you don't think that the error is plain, this case needs to go back to the district court. That's because even if this was a five-year permissibly legal available sentence, the district court did not rely on a complete procedural history. Judge Williams recounted the original 210 month sentence imposed in 2009. He acknowledged he was not the sentencing judge. He specifically identified what materials he reviewed. He said, I reviewed the revocation petition, the attachments, the violation worksheet, and the recommendation, and the pre-sentence report. He didn't mention the reduction under Amendment 782 to 168 months. He didn't mention document number 52, where Judge Reed specifically found that Mr. Halliburton was eligible for 404 relief with revised penalties of zero to 30. None of the parties mentioned any of those documents, and none of the documents provided by probation in the petition, the amended petition, or even the worksheet mentioned these things. I think that when the judge Why didn't the defense bring it up if it was so important? Well, Your Honor, I think that this is specifically what would make that either a plain error or an abuse of discretion. I don't think the defense needed to raise the sentencing history under an abuse of discretion standard, because clearly the Court must rely on an accurate sentencing history in making any decision from the bench. I think that falls under abuse of discretion standard of review and Feimster. Even if a plain error standard applies here, which I think it would, I don't think this is any sort of invited error or any sort of a waiver, because it seems clear that nobody realized these. We don't expect the district court to go back through the docket and look at everything, but these are very fundamental aspects of Mr. Halliburton's history characteristics. They were fundamental to consideration of the need to avoid unwarranted sentencing disparities. Counsel, what else would the district court be referring to when there was a discussion about the sentencing at that time to the bottom of the advisory guidelines? Why else use words at that time? I apologize for interrupting, Your Honor. I think that to say at that time is perfectly accurate. At that time in 2009, the sentence was in fact 210 months, but nothing about the further commentary as the district court is reconstructing what it looked at indicates that it had any awareness of a 168-month reduction or of Judge Reed's section 404 order, not withstanding the fact that she didn't ultimately reduce the sentence further. She did make rulings that are in the case, that are part of the law in this case, and that should at least be considered by any court making a revocation decision. I would like to save the small bit of time I have for rebuttal unless Your Honors have further questions. Very well. Ms. Williams, we'll hear from you. Good morning, Your Honors. Lisa Williams, representing the United States of America. I do want to pick up where counsel left off on what Judge Williams would have considered. I don't have the petition or the first supplemental petition with me today, but it is the practice of the Northern District of Iowa's Probation Office to include all sentencing modifications on the first page of the petition and supplemental petition. Assuming that this is how the dozens of revocation hearings that I've personally handled was handled, you would have the 210 month sentence listed and then you would have the all drugs minus two revised sentence listed immediately under that. I do think that there is support in the record that the district court did consider and was aware of the 168 month subsequently imposed sentence. You're saying you didn't look at the documents for this case? I did look at the documents for this case, Your Honor. What I said is I didn't bring them with me at counsel table to verify that before I stood up in an argument today. So you looked at them, you don't know whether they showed the reduction? As I stand before the court today, Your Honor, but I do believe that they would reflect that reduction and Judge Williams specifically indicated that he did consider the petition and first supplemental petition, which was at docket 65, when before the hearing. Regardless. Where would it normally be in the? The cover page, Your Honor. The very first page of either the petition or the sentencing worksheet lays out the full procedural history, including the date the sentence is imposed, what the sentence was, the term of supervised release, any prior revocations that the defendant had, any terms of imprisonment. There's a whole kind of procedural history outlaid in those documents. Regardless of that, this case does not turn on whether or not that sentence was included in the record. The district court indicated that it had considered all of the 3583E factors before imposing the sentence that it imposed. What counsel is seeking and asking this court to find was an abuse of discretion, is that the district court didn't clearly articulate enough of the factors to their satisfaction, which this court has not required a district court judge to do in the past. The court clearly based its decision on the heinous conduct underlying the state court conviction in deciding to impose the statutory maximum sentence. And in fact, went as far as saying that it would impose more time if it was able to under the law. And so the failure to specifically articulate the prior sentence reduction that Mr. Halliburton received was not an abuse of discretion in looking at the overall sentencing picture here. The more complex argument, of course, is the first argument raised, the statutory interpretation argument. And the government takes issue with defense suggesting that this court should look at Judge Reed's order or the procedural history in interpreting the, in answering the statutory interpretation question. Because, and this is from the Lester case cited in the government's brief, if the intent of Congress can be clearly discerned from the statute's language, the judicial inquiry must end. The court's first role is to look at the statutory language. And if intent is clear, then the inquiry is over. And the court doesn't need to look at Judge Reed's order. It doesn't need to look at the procedural history. And in this case, the intent of the statute is clear. The government believes that this court should adopt the reasoning of the Seventh Circuit in the Cotton case. That is, cannot be divorced from the context of the sentence, or from the context of the words around it. And that the statute refers to the offense of conviction, the offense that resulted in such term of supervised release. It is a backwards-looking inquiry that looks at what a defendant was convicted of at the time that conviction was entered. Not what he may be convicted of if he was convicted today. Again, the Cotton court noted that what really the First Step Act allowed the district court to do is exercise a favorable exercise of discretion to reduce the term of imprisonment that a defendant may serve. But nothing about a favorable exercise of discretion alters an original judgment of conviction. And the government believes that that was correctly decided, especially when you then layer on the Supreme Court precedent before that of Johnson and McNeil, which both come in. And of course, Johnson notes that post-revocation to the conviction. So Johnson takes a backwards-looking look. And then McNeil is even more applicable. That is the Armed Career Criminal Act case, looking at whether or not convictions which were proper predicates at the time that they were convicted of, but then subsequent changes to state law meant that they were no longer proper predicates. And it had that is language that the Supreme Court confronted. The Supreme Court still found that despite the presence of the is language, the proper inquiry was whether it qualified as a predicate at the time of the offense and at the time of the original conviction. As such, the government does not believe that the district court erred. But even if this court finds error, because we're on plain error review, defendant must establish that any such error was plain. And that is where the government submits that this case really becomes an insurmountable hurdle for the defense, because there is no plain error. There is the error is plain if it's clear or obvious. And what we have is a Seventh Circuit case that falls the way of the government. We heard in the argument today and in the brief that was a divided panel, cert was denied by the Supreme Court for whatever that's worth. But if you look at what divided the cotton panel, the dissent in cotton relies on the fact that that defendant received relief under the First Step Act, that he had his sentence adjusted downward. This defendant, Mr. Halliburton, received no such relief. So even if somehow a dissenting, out-of-circuit opinion could be read to create a plain error, to find plainness in this context requires pulling the cotton dissent even further, because this is a defendant who did not receive relief. And I would note, too, the reason that Judge Reed denied him relief, the primary reason, was because of the appellate waiver contained in his plea agreement. That was her first and primary reason. She then said, in any event, I find that the 3553A factors wouldn't support relief. But that was not what drove her decision. And to the extent that defendant argues otherwise, that's a misstatement of the record. The appeal waiver is what drew that. But coming back to the plainness of this error, so the cotton dissent would have to be pulled even further. Defendant relies on a Fifth Circuit case, and the government cited to the opinion that came out shortly after that, the Black case, which kind of reversed and tempered the expectations of Jones. And the Fifth Circuit said, listen, in Jones, what we were concerned about is that the district court thought it had no discretion to consider the First Step Act. And that's what was wrong. But we're not saying that the First Step Act serves as a vehicle to retroactively apply or change the class of conviction that someone was convicted of. So there simply is no error in this case. But if the court were to find that error did exist, it cannot be said to be plain error. And because of that, the government believes that this court should affirm the lower court. And if there are no other questions, the government would rest on its briefing. Very well. Thank you for your argument. Thank you. Your Honors, if revocation is related to the original offense, as the Johnson decision holds, and Congress changes the penalties, both retroactively and prospectively, as it has with respect to crack cocaine penalties, and the district court then adopts those penalties, then the revocation framework is necessarily affected. Here, Judge Williams did not say anything of, I could sentence you to a three years cap, but I choose not to. It's vital to send this case back so that we can determine whether he was the extent to which the 404 decision could affect the outcome and result in a reasonable probability of a lower sentence. I see my time has expired, unless you have further questions. Thank you for your argument. Thank you to both counsel. The case is submitted, and the court will file a decision in due course."
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"stt_transcript": "The next case for argument is case number 25-2649 from the Eastern District of Missouri, United States v. Tonia Haddix. Thank you, Mr. Murphy. Yes, Your Honor. Good morning, and may it please the Court. The District Court erred in imposing an unreasonably long sentence in this case. It concluded that Appellant Tonia Haddix's offense level was 17, which, when combined with her total lack of criminal history, resulted in a guidelines range of 24 to 30 months imprisonment. Nonetheless, the Court sentenced her to 46 months imprisonment, 16 months longer than the high end of the guideline range it had calculated. Excuse me, Counsel, could you speak up just a little, please? Yes, I apologize, Your Honor. Thank you. So the United States Supreme Court has explained that the overarching provision that guides a District Court's sentencing discretion is a limiting one. The Court must impose a sufficient… You're talking too fast and looking down. I'm sorry, Your Honor. The sentence that is imposed must be sufficient but not greater than necessary to satisfy the statutory objectives of sentencing. And that's what we have here, Your Honors. The sentence imposed in this case is simply too long. Ms. Haddix pleaded to an information in lieu of indictment. She had no criminal history. She had a low risk of recidivism. She had an extremely traumatic personal history. And the fact that her lies were motivated… What's your best case where we have held that we reversed because the sentence is simply too long? In that case, Your Honor, I believe that that would be United States v. Sales, an Eighth Circuit case, 2014, 754 F. 3rd, 564. And again, Your Honors, the lies in this case are unquestionably egregious. They were multiple and they were wrong. There's absolutely no excuse for that. But the lies in this case were motivated by a misguided emotional attempt by this person to maintain possession of a chimpanzee that she had come to have an extremely close relationship with named Tonka. So at the hearing, the District Court, justifying its significant upward… Which is maligned by her treatment of the chimpanzee. Yes, Your Honor, that was the position that PETA took in the litigation. It almost… The facts scream out for that. Understood, Your Honor, yes. In justifying the upward variance in this case, the District Court concluded that Haddox had moved Tonka the night before. He was supposed to be moved to a facility by PETA pursuant to a District Court order. And that she violated orders of the court by owning another chimpanzee after she pleaded guilty to the information in this case. The problem with this analysis, Your Honors, though, is that these aggravating factors had already been accounted for by the guidelines. They did not justify an extreme 53% increase above the top end of the guidelines. Specifically, the fact that she had moved this animal prior to the animal being removed by PETA. That was already accounted for by the District Court's two-level enhancement based on its conclusion that her offense was otherwise extensive in scope. And her violation of orders relating to not owning another chimpanzee following her guilty plea resulted in her no longer receiving the two-level reduction in the guidelines for acceptance of responsibility. So in other words, these so-called aggravating factors had already resulted in a four-level increase under the guidelines. And they did not justify an additional 16 months in prison on top of that. And this court has cautioned that substantial variances based upon factors that had already been taken into account by the guidelines seriously undermine sentencing uniformity. And in fact, the sentence in this case did just that. At the beginning of the sentencing hearing, the District Court judge noted that he had reviewed JSON data, the Judiciary Sentencing Information put out by the Sentencing Commission. And that data apparently revealed that the average sentence imposed for defendants, like the appellants, was between 24 and 28 months. We landed at 46 months, of course, in this case. And there were some other aggravating factors, to be clear, Your Honors, that were not taken into account by the guidelines, but those still don't justify the offense that was ultimately—excuse me, the sentence that was ultimately imposed in this case. By way of example, the District Court talked about Ms. Haddox's efforts to commercialize her lawlessness. But when you review the pre-sentence investigation report, which was adopted without change by the District Court, it concluded that any earnings that she received from outlets such as Etsy, Cameo, and Spotify were modest at best. You're talking down again. I'm sorry, Your Honor. The District Court talked about the fact that she had commercialized her lawlessness. That was the phrase that he used. You were going to distinguish. I lost it. I'm sorry. He specifically noted that she had sought to— No, your discussion of why that was wrong, that's when you were mumbling. Oh, I'm sorry, Your Honor. What I was trying to say is that these earnings that she received by commercializing her lawlessness were modest at best. We're talking about a few thousand dollars, according to the findings in the pre-sentence investigation report, which was adopted without change by the District Court in this case. The court talked a lot about the need to achieve general deterrence, the need to deter others, because of the fact that this case had been heavily publicized. But I would argue that the fact that this case was so heavily publicized makes clear that I can't imagine anyone wanting to follow in the footsteps of Ms. Haddox in this case. She lost all of her animals that she was trying to keep. She owes hundreds of thousands of dollars in a judgment to PETA. She's a convicted felon, and of course she's received federal prison time in this case. And regardless of whether that sentence is 46 months or a year and a day as requested by the defense, I believe that the goal of general deterrence is readily met in this case. Turning to procedural errors made by the District Court in this case, two offense levels were added, and we touched on this briefly before, based on the District Court's finding that the offense was otherwise extensive in scope, planning, or preparation. And specifically to make that finding, the District Court concluded that the offense has involved extensive planning because she had sedated this animal, moved him to a nearby hotel, and then drove him to Ohio the next day. And that if she hadn't done these things, that PETA would have been able to come in and take this animal away. The problem with this conclusion is that it's just simply not supported by reliable evidence. Instead, the evidence supporting these findings comes entirely from footage from this HBO television series entitled Chimp Crazy. Indeed, the pre-sentence investigation report in recommending these findings notes specifically that in Episode 3 of that show, Haddox apparently explained her efforts to relocate Tonka, and the District Court even noted at sentencing that it had personally reviewed those excerpts of the show. But the simple matter is that reality TV does not always accurately reflect reality, and uncorroborated statements from a heavily produced television show are not sufficient for a District Court to make findings based on a preponderance of the evidence as it was required to do. Indeed, even before sentencing, the government did not argue that imposition of this enhancement was warranted based on the facts of the case. The government did not argue that this particular two-level enhancement based on the extensiveness of the planning was warranted in this case. It defended the District Court's decision on appeal, of course. One other thing that I would like to note before reserving... Before you get into your rebuttal or your next point, I did want to ask a question just to leave you a little bit of time. And the question really is, you said United States v. Sayles is your best argument where we found a sentence substantively unreasonable, but I think that that sentence was affirmed in that case. That all that Sayles did is it's a seminal case that sets forth what the criteria are. And so, do you have a case where applying the criteria that has developed, that is, we look first at procedural and... I don't want to go through, I'm going to filibuster time. I'm sorry. But do you have a case where actually we set aside a sentence for substantive unreasonableness that's similar to this, and what case would that be? Your Honor, I apologize if I misspoke. I thought that that one resulted in reversal. I'll confess I don't have one at the tip of my fingers right now. I know that it happens, and it, of course, happens very rarely. The fact that this Court turns over a sentence substantively unreasonable is a rare occurrence. But there are cases where it has happened. Is there a procedural problem with the sentencing in this case that you would say is reversible? Yes, just what I've touched on here with the two-level enhancement based on the extensiveness. And what I would say with that, in addition to what I just touched on, is that we cite this case, United States v. Petruch, in our briefing. That was a case in which this case did find that this enhancement was warranted based on the extensive preparation and planning. There, there was an individual who had been charged with carjacking. While incarcerated, he mailed multiple letters to a friend asking her to find someone to play the role of someone that would falsely confess to this crime. He included detailed scripts. They had code words. They used the name of a fellow inmate on the letters that were going back and forth in an effort to hide the identity of the person coming up with this plan. That was extensive, according to this Court. In this case, the extensiveness finding is, as I said, based on things from a television show and also when it boils down to it, it was the fact that she moved this animal prior to the day that it was supposed to be taken away. And I would think that that's far less extensive than what this Court found to be extensive in Petruch. If I could reserve any remaining time for rebuttal, I'd appreciate it. Thank you. Thank you. Good morning, and may it please the Court. This appeal does not present your garden variety run-of-the-mill case of obstruction and perjury. And yes, in the middle of all of this is a retired Hollywood star chimpanzee named Tonka in a popular HBO documentary starring a pellant called Chimp Crazy. You know, you don't have to dramatize it. Thank you, Judge. But what's important here, as this Court considers the District Court's sentencing findings and judgment, is that the District Court had before it an immense record of facts and information to help it in fashioning an appropriate sentence. It had nine years, literally nine years, of an extensive record from the underlying civil proceedings, which generated numerous motions for civil contempt by PETA and also generated not one but two referrals by the District Court to the U.S. Attorney's Office for potential criminal conduct by a pellant. The District Court here reviewed that entire record extensively and cited to it during the sentencing hearing. The District Court also had substantial admissions by the pellant in her guilty plea agreement. Well, then all that resulted in the indictment and the plea. Well, but the plea, my point is Why do all those facts matter to this issue? Well, it goes to the enhancements, Judge. The fact that he had all that It's extensive planning that you litigated? Well, they've objected to it, Judge. The point is the District Court found two separate enhancements, one of which was that the pellant had substantially interfered with the administration of justice. And I want to address that. That wasn't argued. That wasn't argued this morning as a You can open it up and then we'll give them half an hour for rebuttal. I'll get to the substantial and reasonable argument as to the sentence. In this case, there's no clear procedural error as to the application of the enhancements under the guidelines by the court. The record is clear on that. And this court reviewed sentences even outside the guideline range under a deferential abuse of discretion standard. I'm not aware of any case where this court determined simply because the sentence was too long that it was procedurally in procedural error. It was an abuse of discretion of the court. This court always evaluates the underlying facts, circumstances, and law. And the record here clearly shows that the District Court sufficiently considered the statutory sentencing factors under 3553A and did not rely upon an improper factor or commit a clear error of judgment. In sentencing this pellant, the District Court emphasized the nature and circumstances of haddock offenses under 3553A1, which in the District Court's opinion were substantially more serious than the garden-variety perjury and obstruction crimes these statutes usually cover. And the District Court has wide latitude to weigh those 3553A factors in each case. Your brief prompted me to write it here. What case says perjury always warrants this enhancement? Perjury does not always warrant this enhancement, Your Honor. And in fact, the District Court used a hypothetical and gave a hypothetical at the time of sentencing. That's what I thought. Yes, you're absolutely correct, Judge. The District Court's hypothetical was simply what you're referring to. And that is that had this appellant simply lied to the court about the chimpanzee's would-be demise? Well, it was your discussion of the commentary there, or the lead as a leader. Yeah. I mean, that would be perjury. But in this case, the District Court found that it was more than that, that the appellant had not taken, had the appellant not taken all of the actions to secret the chimpanzee Tonka away. The marshals would have facilitated the transfer of Tonka. He would have been moved to the sanctuary as the District Court ordered twice. And frankly, as the District Court found, we wouldn't be here today. So yes, you're absolutely correct, Judge. Perjury does not always indicate that the enhancement is correct. But again, the District Court found here much more than simple perjury. And again- What about the court's statement that when he said that he first of all said, I have considered the parsimony clause, and then Judge Clark went on to say that he had considered all of the arguments advanced and all of the objections and enhancement, and he said that regardless of all that, under 3553A, having gone through 3553A, he said, I would impose the same sentence otherwise. Yes, he did say that, Judge Erickson. And doesn't that render this whole discussion just like harmless error discussion? I believe it does. At several points during the sentencing, Judge Clark made that exact reference in dealing with the enhancements and dealing with the appellant's argument on substantial, whether or not the sentence was substantially unreasonable. I do believe, based upon Judge Clark's statements in the record, it does basically put this in a plain error situation. And, of course, it's the position of the United States that not only was there no plain error, there was no error, certainly no procedural error. And I just want to go through, I believe the appellant is minimizing the relevant conduct that the district court found regarding, in support of, if you will, the district court's sentencing. The district court went through a litany of facts from the plea agreement and also from the unobjected to facts contained in a very extensive pre-sentence investigation report that appellant had surreptitiously secreted Tonka away, first to a hotel, and then to a clandestine keeper in Ohio, 10-hour drive away from Missouri. That she had fabricated a story about a new Capuchin monkey named Tonka to attempt to explain away her text messages referring to the purportedly dead Tonka who she was keeping. She created elaborate lies about Tonka's remains. She feigned tears and breakdown during the January 5, 2022 hearing before the district court to try and convince the district court judge that Tonka was dead. She celebrated joyously with shouts of, quote, we won. After she had perched herself on the witness stand before the district court, she demonized those who sought to hold her accountable, the victim in this case, PETA, and she demonized lawful authority. She publicly stated numerous times that if anyone attempted, if the U.S. Marshals attempted to execute the district court's- And what enhancement is that relevant to? It goes to the sentence, the substantial reasonableness of the sentence, Your Honor. And District Court Clark used that to support the variance in this case, the 16-month sentence. He indicated, again, clearly from the record, that the appellant had demonized the district court judge and questioned her integrity and competence. She had demonized PETA and their attorneys, including threatening to run one of them over. He talked about the fact that the appellant had violated orders of the district court by owning yet another chimpanzee while and after pleading guilty. So she pled guilty. She was on bond. She was ordered not to have any additional chimpanzees. And as the court is aware from the briefing, the United States obtained a search warrant based on probable cause and found another living chimpanzee in the same cage in confinement where she had previously held Tonka. The district court went on to say and find that she had violated orders of the district court, commercialized- and appellant makes light of the fact that the district court believed she had commercialized her lawlessness via Etsy, Cameo, and Spotify. But again, she attempted to do that. She was a star of an HBO documentary. During all of this period of time when she was lying to the district court and interfering with a substantial administration of justice, substantially interfering with the administration of justice, she was starring, she was filming to star in an HBO documentary documenting all of this. And in fact, until that documentary became public in 2024, this appellant's crimes, the criminal conduct, the obstruction of perjury, wouldn't have been discovered. The district court in the civil proceeding bent over backwards to give the appellant the benefit of the doubt. Each time she falsely represented that Tonka, the chimpanzee, was deceased. And of course, we know then when the documentary came out, that was false. And it was at that point where the district court made that second referral to the U.S. Attorney's Office for potential criminal charges. And it was only then, when the United States had the evidence, that the appellant had violated all of the district court's orders, knowingly and intentionally, that we were able to bring these charges. And what District Court Judge Clark was alluding to, when he said that she had commercialized it, was more of an attempt. By doing all of these things, she was reaping profit and money from violating the district court's orders. He also indicated that she had glamorized her conduct through any medium that she could. Social media, podcasts, and of course, the HBO documentary. And she had reaped six figures from her businesses, which included the captive chimpanzees, but hadn't filed tax returns since 2016. That is an extensive record to support the district court's variance of 16 months in this case. And it also enforces some of the enhancements that have been placed in this case. Again, there's no procedural error in either of those two enhancements. Both the court found that she had substantially interfered with the administration of justice. It was her total goal to interfere with the administration of justice in a civil proceeding. And yes, she was very successful until she wasn't. And the district court used two scenarios. I see my time is up. I was a little confused about the extent of the variance in relationship to the guideline range, either as found or as contested for. Well, if I can answer- 21 to 25 was, I guess, was simply adopted. But what would have raised it? Didn't the court think it was understated? Yes, and if I can address that. From the plea agreement to the court's finding as to the total offense level, the plea agreement, of course, included three levels off for acceptance of responsibility. Appellant lost that acceptance of responsibility when she violated her bond conditions by having a second chimpanzee. So that was a three-level difference. And then the district court found that the attorneys were simply wrong in not recommending the enhancement for a substantial scheme, plan, or preparation in her offense conduct and gave her the additional two levels. So that's the difference, Judge Loken. And what range does those- That got her to a total offense level of 17. And then he- What's the resulting range? I believe it was that the top end was 30 months, Your Honor. It was 24 to 30 months, and then he gave her an additional 16 months based upon all of the relevant conduct that he found significant. Thank you. Is there- I'm sorry. Is it in the record what the maximum sentence would be for this? Yes, it is in the record as to each of those. But it's substantially below the 46-month sentence that she received from District Judge Clark. Thank you. At this time, we'd just ask that the court affirm the lower court's sentence and find no procedural error in this matter. Thank you. Thank you. I'll give you 30 seconds for a vote. Thank you, Your Honor. I have very little time. I appreciate that. I wanted to just touch on a few things. And if I could cut right back, if I could, to Judge Erickson's question posed to Mr. Goldsmith at the beginning of his argument, which is this statement that's made by the district court judge towards the end of the sentencing about notwithstanding my calculations of the guidelines range, in this case I would nonetheless impose the same sentence. And that's true. I think that at first glance that looks like a situation in which no harm, no foul. But I think that that's a dangerous precedent to set. I think that if that essentially provides a roadmap to district court judges to say a sentence similar to that, and then even if they've in some way messed up the sentencing guidelines. It's a very common thing. You wouldn't be establishing any kind of precedent at all. I mean, district judges do that regularly. Understood, Your Honor. But I think in some ways that this guts. It's not even my encouragement. In some ways I. It was probably 20 years ago. In some ways I'm concerned that it guts the legal precedent and the guidelines themselves, which, of course, requires an accurate calculation of the guidelines. And if courts are able to say, heck, you know, I hope I didn't mess this up. But if I did, I would nonetheless impose the same sentence. Well, we haven't just said. We put some parameters around what is sufficient. Sure. And I think that that, again, just brings us always back to where we start, which is that at the end of the day, all else aside, the sentence imposed in this case is far more sufficient than necessary to achieve the statutory goals of sentencing. Well, if you look at the sentencing in this case, Judge Clark went on at some length as to the matters that he considered, why he considered them, and why they were different than the sort of run-of-the-mill obstruction case. And so, really, what's wrong with what he said? Because I think that's really, if there's an error here, it's that what he said doesn't justify the sentence imposed. And I think that has to be the heart of your argument. So what did he say that he should not have said, and how does that undermine the sentence imposed? As far as what he said that was wrong, I think that this doubles back a bit to my argument before, which is that what is being viewed on a reality television show isn't satisfactory for a finding by a preponderance of the evidence. And then beyond that, I don't believe that anything is necessarily quote-unquote wrong. I think that these overemphasize some of these aggravating factors and don't take into sufficient account the mitigating factors in this case. What was said on the TV show, is there a difference between admissions that were made by her or things where she was in the screen where she was saying and doing things? Because those would ordinarily be just admissions of a party, and they would be admissible in the sentencing hearing. It could be considered. Is there something other than that that you're complaining about? Well, to be perfectly honest, I don't know what happened. I watched the show a long time ago as well, and if, for example, if the PSR allegations in this case had said, as opposed to what's viewable in Episode 3 is X, Y, and Z, if it had said, I went out and I obtained the raw unedited footage, or I spoke to the makers of the show and obtained affidavits or statements from these folks, I think that that does- So the argument is essentially something that got broadcast could bear only a tangential relationship to reality because, after all, it's entertainment. It's a film called Chimp Crazy, which doesn't imply that it's very serious. That's exactly my point, Your Honor. Thank you. Thank you for your time, and we would ask that this be remanded to the district court for resentencing. Thank you. Thank you, counsel. The case has been well briefed and argued, and we will take it under advisement."
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"stt_transcript": "Castellanos Ramirez versus Blanche. Thank you. So, appellant, where's Ms. Ahmed? Okay, you're for the... Appellant, yes. Appellant, okay. So, usually we put the appellant there, right? Confused? She's my co-counsel. Oh, wait, who's with the other side? He's on Zoom. What? Oh, I'm sorry. That's what it is. He's on the screen. I'm all confused here, sorry. No, it's okay. All right, great. So, Ms. Ahmed, you've got two minutes for rebuttal. So, that gives... Am I pronouncing your name right? Correct. Ahmed. All right, so that gives you eight now to start. Sorry for the confusion. Thank you. Good morning, your honors, and may it please the court. Ms. Ahmed for the petitioner. Ms. Gavis. Ms. Ahmed, yell at me. Oh, okay. Pull those microphones down. Oh, I'm even better. I am. That's terrific. Yes. And yell at me. I have hearing aids in, but they're not always terrific. Okay. So, just yell at me, and I won't be offended, I promise you. Okay, is this one better? I can't speak for judges, but I won't be offended. Just yell at me. Go ahead. Okay, understood. So, Mr. Castellanos is racially and religiously profiled while riding the Staten Island Ferry to work. As a result of that profiling, weeks later, officers tackled him to the ground outside of his apartment, arrested him without providing justification, questioned him outside of the presence of known counsel, ultimately leading to the commencement of the proceedings below. In the course of those proceedings, the agency made three crucial errors which this court can rectify. First, this court can and should terminate these proceedings with prejudice or order remand to the agency for consideration of that same argument. The immigration judge found that Mr. Castellanos had been subjected to egregious Fourth Amendment violations in the course of the April 2nd and April 19th, 2012 encounters with law enforcement as they were motivated to seize and interrogate him because of his religion. After making such a finding, the agency was required to consider petitioner's arguments that termination of proceedings was warranted as a remedy under this court's precedent in Raja. Well, we've never done it before, right? We've just sort of suggested without deciding that it's available, right? Yes. This court has said in Raja and later in Medley that that remedy is available to noncitizens in removal proceedings. But the agency completely sidestepped this question on the theory that if DHS could prove with putatively independent evidence Mr. Castellanos' alienage, it was not required to engage in this argument. That was clear legal error. Whether or not DHS can prove independent evidence of alienage is irrelevant to the question of whether termination of proceedings is warranted as a remedy for conscious shocking conduct or deprivation of fundamental rights. Secondly, and as importantly, the agency failed to hold DHS to its burden of establishing how it had located the putatively independent evidence of alienage. This court made clear in Pretzansin that the government bears the burden of establishing how evidence it offers as independent was obtained without exploitation of material taken during an illegal search or seizure. Was there any evidence here that your client was fingerprinted in connection with the detention? I believe, yes, that he testified that he had been fingerprinted in the course of the April 19th arrest. DHS had multiple opportunities over several hearings and several years below to make this evidentiary record. They declined to do so, and the fact that the agency failed to hold them to that burden was also clear legal error. The government also cannot now, solely through attorney argument, suggest that it can meet that burden by suggesting that the I-130 and supporting documents were located solely through the use of petitioner's name. Such an argument is foreclosed again by this court's decision in Pretzansin. Third and finally, the agency erred by creating a new test of sole dependency for establishing whether or not Mr. Castellanos qualified for cancellation of removal. I'm happy to answer any other questions. Well, I had a question. You said that our court has recognized that termination can be appropriate for an egregious violation of rights, but I thought we had assumed without deciding that such an egregious violation could be a basis for terminating and proceeding, but we never said that. We just assumed it for purposes of the cases that ultimately decided it was not the case, right? Yes, that is correct. That is the language that Raja and Medley used that we assumed without deciding that such a remedy is warranted for a conscious shocking conduct or a deprivation of fundamental rights. So you're saying we should decide that today. Or you can remand to the agency for consideration of that argument as they fail to consider it. So I want to clarify, though, because everything that you've said and the exchange you just had is true as to the remedy of termination with prejudice. You've not argued for termination without prejudice, basically a do-over from the get-go, but the case is still there. But I read both Raja and Medley and Admiral Donato to identify three potential remedies. And as to termination with prejudice, it assumes without deciding that it's available, but leaves that question open. But as to termination without prejudice, I don't read it as assuming without deciding anything. I read it as saying, we hold that pre-hearing regulatory violations are not grounds for termination absent prejudice that may have affected the outcome of the preceding conscious shocking conduct or a deprivation of fundamental rights. Am I misunderstanding those decisions in distinguishing between termination with prejudice versus termination without prejudice as far as the extent to which it's assumed without deciding versus the subject of a holding? So I believe that the panel and Medley issued some clarifying language as to this, and they stated, if I'm remembering correctly, that termination without prejudice could be ordered if somebody showed that there was prejudice resulting from the outcome of the pre-hearing regulatory violations. But that was after they – I understood that to be after they had evaluated the evidence in that case, concluded it wasn't sufficiently egregious because it didn't involve, like, racial profiling or the kinds of things we're talking about here. And then said, so for this remedy, they'd have to show it was with prejudice. I didn't read that as negating or taking back the test established or the rule that purportedly established in those prior cases. It sounds like, in your view, that they did that. I would say they offered some clarification. But, yes, obviously the remedies discussed in RAJA are the remedies that are available to the agency for consideration. So I wouldn't – I'm sorry, but you're not seeking termination without prejudice, right? You've never sought that. Am I wrong about that? You argued that before the BIA? I believe we possibly did, but I'd have to double-check that, Your Honor. I mean, it feels like sometimes the case law talks about termination, and sometimes it makes this distinction with or without, and I'm just trying to figure out. Well, I mean, did you argue this in your brief, that you want termination without prejudice? Did I miss that? Sorry, Your Honor. Let me just make sure that I'm – I don't believe that in our brief we meaningfully discussed termination without prejudice. So accepting that, but also trying to understand the legal framework in which all of these categories exist, do you have an opinion, a view, as to whether we have established termination without prejudice as available in one of those three circumstances? And it sounds like you're interpreting Medley to say, no, that's only available where there's prejudice. I don't believe that Medley says that's the only circumstance in which termination without prejudice could be ordered. I think, again, just the language of Raja says any one of these three remedies is available for consideration by the agency, and that if the petitioner makes that argument after there's been a finding of such egregious violations, then the agency has to consider whether those remedies are warranted. And the agency didn't consider that below. Sorry. Any other questions remaining for now? All right. The brief also dealt with the third issue concerning your client's mother, but you'll rest on the brief for that. Yes. Okay. Thank you. All right. We'll now hear from Mr. O'Malley for the government. Mr. O'Malley, sorry for the confusion. Can you see and hear us all right? Yes, Your Honor, I can. Thank you very much for accommodating me online today. I appreciate that. Okay. So we can see you, but you look like a bad dubbing exercise in a movie. So your lips and your voice are not in sync. But you look good, and you sound clear, so I think we should just proceed. I can see that Mr. Purdy is going to try to remedy the situation. But you've got ten minutes. Go ahead. Thank you, Your Honor. And may it please the Court, my name is Andrew O'Malley. I represent the Attorney General of the United States. The Court should deny the petition for review because the Department of Homeland Security established petitioner's alienage through preexisting records independent of any purportedly violative conduct and because the agency properly denied petitioner's application for cancellation of removal. Even where an arrest is constitutionally defective, the Department of Homeland Security may show alienage through evidence gathered independent of the violative conduct, and that is the case here. As the Supreme Court explained in Cruz, the exclusionary rule enjoins the government from benefiting from evidence it has unlawfully obtained. It does not reach back or detain information that was in official hands prior to any illegality. And insofar as the concern is how the Department of Homeland Security came to be in possession of the documents it used here, we know how DHS obtained the documents because petitioner himself provided those documents to the agency long before his apprehension by immigration authorities. And he cannot reasonably claim that that information in those documents is somehow tainted by the circumstances of his arrest a decade later. So, I think maybe by not addressing it head on, you're answering it. There is other circuits have considered similar situations and whether or not, certainly in the briefing the suggestion is that his name only was the tool that enabled them to plug it in and get this information. There's no evidence to support that as opposed to other things that were gathered, perhaps biometrics or other information in connection with the egregious arrest. And so, is it your position that there is evidence on that? And if so, what is it? No, Your Honor. I didn't mean to suggest in our brief that DHS used only his name. I don't think that's supported by any of the evidence that DHS presented. I just think there is a bundle of identity information that's not suppressible. This Court has said the name is a practical consequence of jurisdictional identity evidence that is going to come into evidence and can be used to obtain other evidence. And that's where the name issue, I think, comes up. But the undercurrent of this Court's decision in Presnatchian and the unpublished decision in Oswerto, pardon me, is that there's a distinction between, a fundamental distinction, between the agency using that identity information to go out and obtain evidence from another agency or produce evidence to use against the individual in the removal proceedings and evidence that Petitioner himself has, as in this case, provided to the agency and brought himself to the attention of immigration authorities. And that's where we get the statement in both Oswerto and Presnatchian where he's at least made himself a suspect in terms of his removability by establishing his own alienage before the agency well prior to the allegedly violative conduct here. And that makes the circumstance of this case a little bit more akin to a situation where the alien admits alienage in the course of proceedings as a strategic maneuver through counsel to admit alienage and then move on to relief and then try to suppress that information as opposed to the agency presenting something that went out and obtained after the violative conduct and submitted that as a production of evidence based on information obtained through that violative search and seizure. So I just want to make sure. So the distinction is whatever the law may say about using, let's say, the package of biometrics that were secured in connection with the arrest to secure information from third parties that disclose alienage. If the third party is the DHS database, not really third party, then as a matter of law, once somebody comes to the attention of law enforcement, anything in DHS database is fair game without regard to the egregiousness of the circumstances pursuant to which they came to the attention of law enforcement. I don't know if that blanket rule is warranted, but it's certainly the case here. What would be limiting principles to make it not a blanket rule if it applies here? I mean, it's one thing to say only in this case, but to help me understand what would make this case potentially different from another case would help me understand what rule you're advocating. That's fair enough. And I think I'm thinking about cases where, for example, in a criminal proceeding, somebody is looking for the A file and whether or not they can present that. But, yes, I do think that in a case such as this, that sort of blanket rule is a fair reading of the court's decision in Busuerto and Prezantian where the court basically said, you have presented evidence at DHS of your alienage, you have brought yourself to the attention of authorities, and you have made yourself a suspect with respect to removability, and therefore that evidence can come in because it's not tainted by the unlawful conduct. And that's the concern is whether that's tainted in such a way that it's not reliable, which it's reliable because he presented it. And it wasn't come out through any violative means. It was presented to the agency. But in terms of tainted and violative stuff, I don't totally get it, whether the request is to a local law enforcement department or the Guatemalan embassy versus intra-agency records. There's no implication that somehow the evidence in the – in Prezantian that the local law enforcement office evidence of his alienage is tainted by the egregiousness of the conduct that led them to that identifying information. Yet we said, you know, the government has the burden to justify the manner here. That's fair, and I understand your point, Your Honor, and I think the distinction there is whether or not this individual or the individual in Prezantian brought himself to the attention of immigration authorities in the first place, which there the agency had to go out and use the evidence that it obtained through a violative search or seizure to obtain that evidence to use against him. Whereas here, he brought himself to the attention of immigration authorities. They didn't have to go out and find new evidence to use against him or produce new evidence. And that's consistent with – He did, right? He was in a database somewhere from 20 years ago. But this proceeding was not – did not come about because somebody mined the database randomly or decided that they were going to go after people who had filed I-140s or whatever they are 20 years ago. I mean, there's a direct – certainly it's a but-for cause. Maybe that's not the test, but it's a but-for cause. Do you agree with that? That's fair. I think that's fair. I think there are statements in the record, both in the 213, which the IJ did find to be unreliable, but that decision was not reviewed by the Board. And then at the hearing, too, where DHS indicated that this individual, based on the information provided in the I-130 before, had been referred to ERO for enforcement as a possible removal as a criminal alien. So he was at least suspect in that sense. And I don't – and, again, there is a distinction between using that information to create new evidence, which is, you know, the concern of the exclusionary rule and the preexisting evidence that he himself has provided to the agency. I see I only have a few moments left. May I turn to termination or would you like more on the – No, go ahead. Okay. With the termination argument, this Court has not held that termination with prejudice is appropriate. It has said, assumed without deciding that it's out there. That's for a conscious shocking behavior or conduct. We don't have a finding here that this is – there was conscious shocking regulatory violations. The immigration judge did make a determination on the termination argument. That's in the denial of the motion to reconsider, where she did say, you know, understanding the considerations, and she cited the RAJA and noted the concerns. And this Court's test for when termination is available or warranted said it's not warranted here because there is this independent of alienage, evidence of alienage. And given the policy considerations and the terms, the terminations and considerations, termination with prejudice or termination in general is not warranted here. And I will note as well, I read Petitioner's arguments as always arguing for termination with prejudice. I do not think there's any mention in the record of termination without prejudice, but I cannot be positive of that at this moment. But I think in the briefing at least, Petitioner just asked for termination with prejudice. And are the two different in terms of the extent to which we've established their potential availability? I think so, yes, Your Honor. I think you have noted that termination without prejudice is a potential remedy. You have only assumed without deciding that termination with prejudice may be available for conscious shocking behavior. And I would note that the only regulatory violations that they advanced here are fairly similar to those in Rasha and Medley. So the conclusion that termination is not available because it was proved through independent evidence sort of is a little bit of a step outside the framework that says it's potentially available for sufficiently egregious violations. We're going to assume without deciding it's potentially available. I take it, I mean, I guess it's a legal question that we have to decide. A, is it, have we just been talking without it really being a thing all this time, right? Is it really potentially available on the basis of egregiousness? And if so, is an exception to the, because egregiousness isn't really about prejudice, which gets to the alternative availability of alternatives, right? Egregiousness is about deterring conduct by officers that not only violates the internal regulations, but it is so violative of the regulations that we need to do something as a deterrent to try to ensure against that. It sounds like the agency's position sort of wipes that theory that's been kicking around in our case law away. So I don't think, I'm out of time. May I go on? Okay. So I don't read the IJ's decision as relying specifically on prejudice. And this is confusing because it's, you know, termination with prejudice to show prejudice. But I don't think it's a, you can't show prejudice to support a termination determination. The IJ says we need to balance all of these considerations, policy, deterring government misconducts, protecting the rights of aliens, and enabling reasonably efficient law enforcement. And those determinations, those considerations are not served by suppressing or by terminating proceedings because this individual has submitted evidence of alienage on his own. So those considerations don't meet the standard for termination under any of the three opportunities that might be available under RASHA. So we said it wasn't sufficiently egregious because, in part, because it didn't involve racial profiling. And I guess partly what I'm struggling with is we've said a number of times we would assume without deciding that if it's sufficiently egregious that termination would be an available option, even termination with prejudice. And I'm trying to figure out where we have a clear finding of racial and religious targeting, as well as unlawful arrests, violative of the internal regulations, but also implicating fundamental rights. If this isn't that, then does it exist, right? Or are we continuing to sort of describe a hypothetical? It seems to me if termination is available as a deterrent, you're not taking the position that this wouldn't meet that standard, other than the fact that you're saying there's another exception, which is the independent evidence? I don't think I can take that position. The agency didn't make that finding, right? The IJA made that decision. DHS asked them to review it. The board specifically declined to review that because there are other bases to dispose of the case, which are this independent evidence determination for both. But that's only another basis. It's only another basis for resolving the case if you conclude that the egregiousness is not a basis for termination in the face of an individual. In other words, if the argument is the Second Circuit has said multiple times that if it's sufficiently egregious, then wholly apart from the remedy of suppression, termination is a potential remedy. And then the agency says, well, no, because there's independent evidence. That, to me, is saying, well, there's no evidence. They didn't suffer any prejudice. You're deciding the legal question without ever acknowledging that you're deciding the legal question. So I think the issue is that the termination with prejudice may be an available remedy, but it's not required for conscious shocking behavior or egregious conduct. There's no indication that if you find egregious conduct or conscious shocking behavior, you must terminate with prejudice. It's still the agency must make a consideration of the balance between protecting the rights of the aliens, government misconduct, deterring misconduct, and enabling reasonably law enforcement. So in your view, that balance is something you do in a case-by-case basis. That's not a balancing that you do in determining what the rule of law is that you're going to apply in a more broad way. I think that's a fair way of reading it. Yeah, and I think that's the way that the immigration judge ran the analysis. These are the remedies that are available to you, but we're not going to terminate here because it really doesn't do any good. When the Supreme Court identified that balancing, it was doing it in the context of deciding whether suppression is available as a general remedy for Fourth Amendment violations. It wasn't doing it on these particular facts. I'm doing this balancing, and so that's interesting. So your view is that that's actually a balance that you do on a litigant-by-litigant basis. Well, I think otherwise, the way that perhaps I was hearing you read the standard would be that if there's conscious shocking behavior, conscious shocking violation of regulations, you must terminate with prejudice, and I don't read this court's precedent as saying that at all. You still have to go through these considerations. Your Honor, unless there's anything else, I appreciate your time very much. Okay, thank you very much. Mr. O'Malley, we'll now hear from Ms. Ahmed for two minutes of rebuttal. Thank you, Your Honors. First, I would just like to point out that I don't believe that the immigration judge actually engaged in the balancing test that my colleague suggested that she did. I'd point the Court to S.A. 14 and 15. That's the first time that the immigration judge cites the factors laid out in Raja, and she completely sidesteps the question of whether termination of proceedings would protect the right of Mr. Castellanos Ramirez in this circumstance, whether termination would deter further government misconduct or would enable reasonably efficient law enforcement. Secondly, I would point to this Court, as we did in our briefing, to the panel's decision in Hazbat Rami about why it is still important to hold the government to its burden of establishing how it has located putatively independent evidence. In that case that involved, the panel decided that the evidence collected was lawfully collected and was in the government's possession, but still remanded for the question of whether there was somehow improper querying of that database. And so I would just again refer this Court to that reasoning, and we shouldn't have a rule where the government gets to say, oh, it's already within our records, so we don't have to show this separate evidentiary showing of how we located our records. But I mean, I want to explore that with you, because it seems to me what you're saying is that it wasn't on the radar until after this incident. And your view is if that's the case, then it has to be suppressed, even though it was produced by your client before the incident, right? That's what you're saying? I don't think that's quite what I'm saying. What I'm saying is that if the government wants to offer evidence it says is independent, then it has to show the agency how it got to that evidence. And so it has to show what did they use to query their systems for how they're going to produce this. How they came to have in their possession the proof of his alienage. Not how they came to have it, but how they located it, right? So you're saying they should have said that his name on ELF was alone to identify him? Well, if they had that opportunity below, they could have submitted an affidavit or had testimony. Because in Prezetsen, the issue turned on their birth dates, didn't it? And the fact that they were from Guatemala, and that wasn't necessarily apparent to them. Whereas this individual's name is tied to a passport and or an application for a visa that was in possession of the government 10 years before the incident. Is that the case? Yes, but the government would have had to show that they could have located that. I would put forward that the government would have to show that they could have located those documents solely through use of his name. If they were going to say that that's all they used. Solely through use of his name, so not his date of birth. Yes, if they're going to say that Prezetsen stands for this proposition that names are not suppressible. Identities aren't suppressible, and a name is part of one's identity. That's what's not suppressible. Right. That's what Prezetsen says. Right. Right, I'm familiar with it. I'm aware, Your Honor. If there's nothing else, I, again, just refer you to our briefs. Thank you for your time. All right, thank you all. We will reserve decision."
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"stt_transcript": "Good afternoon, Mr. Bush. You've reserved two minutes for rebuttal, and you can begin whenever you're ready. I have. Thank you, Your Honor. May it please the Court, my name is Richard Bush, and along with my colleague, Drew Davis, I represent the plaintiffs, professionally known as Salt-N-Pepa, and as mentioned, I'll reserve two minutes for rebuttal. Your Honors, I know the issues, so given my limited time, I'm going to get right to it. Thank you. While UMG accuses us of going on a free-ranging search for the best copyright policy, this could not be further from the truth. We are applying fundamental principles of law and the actual language of the agreements, while the District Court and UMG have done the opposite, ignoring crucial language and definitions in the agreement and misciting the key acuity decision authored by Your Honor Judge Lynch and inventing a requirement that does not exist in the law. Universal also made a crucial admission not understanding or noticing a definition in the agreement that is fatal to their argument. That definition that they ignored is a definition of audio-visual in the agreement that defines it as sound alone or sound synchronized with video, which is a crucial mistake that they made. Excuse me. I'm a little puzzled by the chronology here. The agreement that we're primarily concerned with, would you agree, is the NIDA agreement? Yes and no. The first agreement, they were all entered into on the same day. I understand that. However. But they are designed to be sequential. The NPR agreement is basically with NIDA and its principal, Azor, right? The NIDA agreement is between Salt-N-Pepa and with Azor, and then the subsequent agreement, correct. Right. So if Azor transferred rights to NPR, he can only transfer what he had, and what he had, you argue, came from your clients. That is correct. So in terms of that agreement, what recordings had your clients made before that agreement? The two pre- The complaint doesn't really say very much about that. The two pre-existing agreements are Hot, Cool, and Vicious, and a Salt with a Deadly Pepa. Those two albums. Correct. From before. The other recordings that are at issue in the case come after it. That is correct. Now, so if, I'm sort of simple-minded, I guess, about this. I think, well, your clients are the people who sang the songs, wrote the words, devised with the third person in the group, the rhythmic accompaniment, right? So they did the work of authorship for pretty much all of these things. But how can you transfer your copyrights in material that you hadn't composed yet? Because it's a, we put this in our papers, it's a gap assignment that is allowed. You can make a present grant of future work, and that's called a gap grant. And we cite the case law and the authority in our papers for that proposition. How does one distinguish that from a work for hire? Now, putting aside, it seems to me, things that were created before that agreement could not have been retrospectively turned into works for hire. That is correct. Okay. But things after that could be works for hire in principle. Could be in principle, but you have to go through the 13 read factors, and it has to be within the nine categories that can be works for hire under the 1976 agreement. And there was no analysis below on those 13 read factors, and that is one of the major problems in this appeal. So, one argument that you have is just that this is premature because these are very factual, very contextual, and shouldn't have been done at the pleading stage. Exactly. And if Your Honor looks at the Playboy decision, which kind of sets forth the framework for handling a situation like this, in the Playboy decision, the court says, this court says, that the district court should rule after a developed record, after which the district court engages in an authorship analysis, and then determines whether a Section 204 transfer has been made. The district court did not do that. And so, our position is a few things. Well, in a certain way, are you saying that the, really the way to proceed here is to decide first, was this a work for hire, were these things works for hire? And you can't do that until a later stage. That's what I would actually say, Your Honor, is that the NEDA, the S&P NEDA agreement absolutely contains a grant in the preamble and in paragraph H, and furthermore. Well, but it also creates a personal services contract. It creates. It talks about they are going to provide Mr. Azor with their personal services. True, it does say that, but again, there is an assignment of both the preexisting works and works to be created in the future in the S&P NEDA agreement. That's the preamble and paragraph H. Furthermore, in the preamble, it says specifically that it involves audio-visual works, which is defined to be sound alone, period. The district court said, oh, it's not an assignment because it doesn't assert ownership, but that is a complete mischaracterization of the law. Well, I understand that your argument and lean towards it, but you don't have to say in the agreement, I own this and I transfer it to you. Correct. I transfer it to you. That assumes that you own it. And if there were an allegation in the complaint that says we owned it before because we created it before, that would seem to be sufficient. Yeah, it's a fundamental principle of copyright law under the 1976 agreement that ownership vests in the author upon creation, period. But the complaint doesn't say anything about when the works were created. It says, that's what I define, if you have something else that I overlooked, by all means tell me, was one paragraph that's a general conclusory allegation that they are the authors of everything in controversy. There's no distinction between what was created before 1986, May 1986, and what was created later. I'd have to go and look. I was not at the district court level, but the fact is that all four undisputed created by Salt-N-Pepa, the two that I mentioned were pre the agreement, the other two were after and the NIDA agreement contains the grant. So the only way, the only way anyone- But the language, I mean, you say correctly, it does not use the words work for hire going forward. On the other hand, neither does it say this is a transfer of rights that we have. It just says he will be the owner of all of this. No that's not, with all due respect your honor, I believe in the preamble it says specifically that they assign the exclusive rights to the audio-visual works and that is defined to be sound alone. Sound alone, but is it, I'm sorry, I just didn't know, I'll be done, sorry. But that does not say we're transferring rights. It says grant them the rights, I mean, there's no magic- What's the difference between granting him the rights because he's now going to be deemed the author as a work for hire and granting the rights as a transfer? Well it says grant in the preamble, it says shall be the owner in paragraph H and as the law is very clear, there need not be any magic words and what we have to do is go through the 13 read factors in order to determine whether there's a work for hire. Isn't that the fundamental problem here? If it was designed to be a work for hire, I understand that can't be decided at this stage, but the shall be language would fit potentially a work for hire, but if in fact it was intended to be a grant, which you're suggesting you get from looking at the preamble in conjunction with that, it creates some ambiguity. If someone's trying to do a work for hire and uses the word shall be, then it could be argued, well, it's a grant, it could also be a grant. I think one of the most important points here to say is that Congress specifically made it very clear that by saying that you can't contract around the termination rights in what's this, section 203A5, there cannot be a contract to the contract. You have to go through the read factors to determine whether it's a work for hire or The language shall be, I understand your point to the preamble as well, but shall be could be either. It could be a work for hire, it could be potentially an assignment. We cite, there are three cases cited. We cite a case that says that shall be is, in fact, an assignment. There's a case that my opponent cited that actually says the same thing. And the third case that's cited says that it depends on the facts of the case and there was a condition precedent and it's not determinative. So there are three cases on that point that are cited before your honors. All right. Thank you. Thank you. All right. We'll hear from Mr. Vandell. May it please the court. My name is Richard Vandell of Cowan, Lieblitz & Lappman and I represent the appellee UMG Recordings, Hank. Judge Code correctly granted UMG's motion to dismiss because under the plain language of the agreements annexed to the complaint, there was no grant of copyright executed by the plaintiffs, a fundamental requirement of the termination provision of the Copyright Act. Now, Mr. Bush has pointed to a couple of things to try and create a grant. One of those... I think I just want to make sure we all agree that you don't have to assert the ownership in the agreement that that's not a requirement, right? Right. If you create the work, you're the copyright owner, whether it's in the agreement or not, right? Correct. But I think what Judge Code was doing, in her opinion, was clearly indicating that there was no grant and the fact that the plaintiffs are not indicated at any point as owners, when taken in conjunction with the whole way the agreements are structured, is certainly relevant to understanding the party's intent. First of all... Wait, wait. For the two albums that were created before May 1986, how could they possibly be works for hire? Well, they could theoretically be works for hire under Dumas in the sense that the writing can come after if there was an understanding before. Yeah. And where do you find anything remotely like that? No, I agree that that's not something that can be decided on a pleading. So if you want to... If you feel it's necessary to reach the question of work for hire, then there would be a distinction between... Well, but if it's not a work for hire, what would it be other than, I mean, you're claiming that your clients own the copyrights now to all of the compositions at issue, including those two albums, aren't you? Correct. But how could you get that other than as a work for hire? Well, as to the recordings that were created after the agreement, I think it's... That's different. I'm talking about the first ones first. Excuse me. Answer my question about the first two, then. As to the first two? It would have to be a work for hire. So at a minimum, Judge Cote was incorrect to say, I can ignore the work for hire issue because this wasn't a grant with respect to things that were created before the agreements were entered into. Those things, at least, those two albums, whatever's on those two albums, obviously, it seems to me, the artists own the copyright when those recordings are first made. They can't be retrospectively turned into a work for hire. Therefore, unless there was some evidence of some prior agreement, but there's nothing of that in the pleadings that made them works for hire, those could not transfer to your client, right? Well, our position is that you don't need to decide UMG's ownership in order to determine whether there's a grant. There has to be language. No, no, no. Excuse me. I'm sorry. If there is no grant and they're not works for hire, then all the more so your client can't have the copyright to those first two albums because either they would have gotten it derivatively, it was granted, transferred to Azor and NIDA, and then by Azor and NIDA transferred to your client's ultimate, and there's a whole chain of this. Right. I mean, that's correct. If you're going to go through and feel that you have to determine the chain of title of ownership. But look, the issue here is they are claiming, the plaintiffs are claiming that they own a whole range of things. Included in that range are those two albums. So those two albums may be a separate issue. Maybe they're not going to be very happy if that's all they come away with. But at a minimum, I don't understand what is the argument by which anyone, Azor or anyone subsequent to Azor, acquires those albums other than by a grant. I mean, the argument would be that to terminate under the termination statute, there's an exception for works for hire, which is separate from the fact that there also needs to be a grant executed by the author. Wait, wait, wait, wait, no, no, no. Look, there needs to be a grant executed by the author, I get that. But your client claims they own those things. And if there's not a grant, they don't own them. OK, so let me move on then to the other works. I take your point on the two pre-existing albums. As to everything that was created after, I think the language is absolutely clear, particularly in the next plateau agreement, paragraph five. Well, wait, wait, wait, the next plateau agreement is something else, right? The first thing that has to happen is Azor has to get rights, because Azor is the one who is the signatory to the NPR agreement. And all that the inducement letter says, all that the plaintiff's sign says, yeah, we agree he has those rights that he's purporting to transfer. So they either got there, they had to get there somewhere. Well, I mean, the agreements are entered into simultaneously. It says in the preamble that they're simultaneous. There's plenty of law that we cited that says you have to look at these agreements and take them together as a whole. Looking at them together, I mean, what the next plateau agreement says is under paragraph five, that from the inception of the creation of these works, they're going to be owned by the record company Next Plateau, and that it has the right to copyright the sound recordings in its own name as owner and author thereof. And the word author is very important there, because the only way it could be an author of those works is if they're works made for hire. So that is really... Excuse me. Once again, the issue, and this may just be a technicality in terms of the district court's appointment analysis, I don't know. It has to be a work for hire. All this stuff about we don't know whether this is a grant or not, really the only thing it could be other than a grant is an agreement to create works for hire. There's not another alternative. Well, if we... So let me talk about the work made for hire issue then, because Mr. Bush keeps talking about the read factors under 101.1, but what he ignores is that there are two ways that you can create a work made for hire. 101.2 for specially ordered or commissioned works can also be works made for hire. And basically, if you look at their moving brief, I mean, they argue that Judge Code effectively found works made for hire whether she said that or not. Taking that as true, if we say that's what she essentially did and that in order to affirm you need to find a work made for hire, they've only advanced two arguments in their opening brief as to why these later created works can't be works made for hire. And they're both clearly wrong as a matter of law. This is at page 50 to 52 of their opening brief. They argue first that Congress added sound recordings in as a 101.2 category and then took it out, so that must mean that sound recordings can't be covered. That's clearly wrong because the statute itself says that neither the addition nor the deletion of sound recordings shall be considered. It's as if we never enacted both the first statute and the amendment. So the fact that it came out is utterly irrelevant. So that reinstates, what Congress essentially does there is reinstate whatever the law was before. And is, of course, Congress' agnostic as to, as a matter of law, what that was. Right. And the second, so the first argument is just wrong. And the only other argument in their opening brief on the work made for hire question is they say there was no express agreement that it's a work made for hire. But if you're looking and considering the fact that you have to look at these agreements together, the next plateau agreement, as I said in paragraph 5, says that next plateau will have the right to copyright it as the owner and author of. You can only be the author of those works if it is a work made for hire. That's the only way the record company could be the author of the works. So that's plainly wrong also. So if, I'm following the argument so far. And I guess what I'd like to ask is, is that a sub 1 or a sub 2 situation? Sub 2. Sub 2. 101-2. It's not being an employee. Correct. It's something that is specially ordered or commissioned. Right. And so what I'm saying is the only two arguments they argue as to 101-2 are easily disposed of as a matter of law. The statute amendment and the absence of an express agreement. There is an express agreement in calling them the author of the work. And when you also look at the rest of these agreements, which don't contain grant language, don't contain any. What about the preamble? So the preamble, and this is very important. Mr. Bush keeps saying it defines audiovisual works as being sound only. That's not right. The preamble uses the term audiovisual exploitation. Audiovisual exploitation is not a defined term in the agreement. The term that's defined in the agreement is audio or audiovisual recording artist. And if you look at that defined term, it says, you know, what makes sense, obviously, just looking at the terminology. The audio part of that means when the sound recordings embody audio only. And the audiovisual part means when the recordings embody sound synchronized with visual images. What do we do with an undefined term? What is audiovisual exploitation? Audiovisual is defined in the Copyright Act, and it's consistent with the definition of audio or audiovisual in this contract. It means synchronization of sounds with visual images. So that's audiovisual exploitation. There's no mystery that as to what it means. There's a definition of audiovisual works in the Copyright Act that says that. And there's a definition in this contract that talks about audio and or audiovisual and obviously connects sound only to audio and sound synchronized with visual images to the audiovisual component of the term. If you look at paragraph, at the preamble, which they've now discovered as suddenly being a grant, it can't be a grant. It doesn't even say what works it's granting any rights into. It's really talking about the fact that it's a personal services contract. Well, they don't just have that because paragraph H has shall be language, which then they have cases that say, including a New York State case that states that that can also be a grant. It could be other things, but it could be a grant, right? Well, I think if you look at the language in the preamble, it's talking about audiovisual exploitation, which means audiovisual works. There are no audiovisual works that are at issue. I mean, there's no audiovisual works identified in the termination notice. Nobody talked about audiovisual works. That preamble is not even mentioned. Paragraph H is broader than that. Paragraph H is about audio and audiovisual recordings, right? Well, paragraph H defines audio or audiovisual recording artist, and obviously is talking about audio when it talks about the sound recordings part, and audiovisual when it's talking about audiovisual works. But it contains none of the language that you would expect to see, which, importantly, is contained elsewhere in these agreements. I mean, paragraph K of the NIDRR agreement very clearly uses grant language when it's talking about the rights to the artist's name or likeness. The next plateau agreement, even with respect to copyrights, if you look at paragraph 10A of that agreement, talks about assigning a 50% interest in the musical compositions, in the copyrights to the musical compositions. So quite clearly, when you look at these agreements as a whole and the way they're structured and the language they use, the parties knew what a grant was. They knew how to use grant language when that was what was intended. They clearly stayed away from that in dealing with the copyright ownership of the sound recordings. All right. All right. We understand. Thank you. And so, unless the Court has any other questions, then I would turn it off. All right. Thank you. Mr. Bush, you have two minutes. I want to start with something that opposing counsel said about the NPR agreement. He said that our only argument on the work for hire was that, well, he ignored the fact that at page 50 of our brief, we talk about the fact that for a work for hire in the 1976 Act, it must be a specially commissioned work. That is the, that's paragraph two, section two. And that goes to the instance and expense test, which is absolutely not developed in the record in this case. So, if I were going to leave you all with a couple of things, first of all, absolutely, if you look at the grant language, both in the preamble of the NEDA agreement, as well as in paragraph H, you're going to see that there is grant language, and that's the only way, as your Honor and Judge Lynch said, that they can get rights. You mentioned the possibility of a sort of preemptive, or advanced, or lagged transfer of rights, right? You can do a present grant of future rights. It's called a gap grant. We've cited the case law, to your Honor, in our briefs. I mean, I would think, and of course, I could be very wrong about this, not being a copyright expert. I would think that that is a somewhat unusual thing to do, and that that ought to seem more explicit than this. There's nothing here that says, for example, and I understand there's no magic words, but words have meaning, and the logical words to say, I'm going to transfer to you all the rights that I would otherwise have in the works that I am about to create, is a somewhat, you know, that's a strange thing to me, as compared to, I am going to work for you under a personal services contract, which entitles you, eventually, by the time we get to NPR and company, to demand albums. I owe you albums. I'm supposed to create work. I can't just retire now. I owe you work. Doesn't that sound a little more like work for hire, than like, should I create something and become the author of it under copyright law? I will transfer, I'm transferring those rights preemptively in advance to you. Well, first of all, in the NIDA agreement, it says specifically that Salt-N-Pepa retains mutual creative control of the recordings that are being created. So it is not actually unusual to have a situation where there is an actual grant, which we have in the preamble and in paragraph H. And then for future albums, they're going to maintain mutual creative control. And that takes us back to the fact of the NPR agreement and going back to what opposing counsel just said on the NPR agreement, a few things that are very, very important here. Number one, that I would leave you with, the sequence of events as set forth in the NIDA agreement. It talks about a future distribution agreement, both in the preamble and in paragraph N. So we know that the NIDA agreement came first and then the distribution agreement. Then in the distribution agreement, we have two paragraphs that contain grants. One, a specific grant in paragraph, five is it, in 3C, that says we're going to grant you ownership of such sides that have been created. So there is a grant in paragraph 3C with an exhibit A that says such sides that refers to the prior album. So right there, we have a grant. And the mistake the district court made was she interpreted that to be for both the present, the past and the future. But then, but it's only the past by its pure language. So we do have a grant in 3C of the NPR agreement. Then we go down to paragraph five and in paragraph five, it has the same shall be language that the producer shall be the owner. The same thing that's in paragraph three shall be the owner. And so that is for the future albums. That is a grant. And once more, Congress made it very clear that you cannot contract around the termination rights. No, but you can actually contract around it by making it works for hire. If then there's not a true, true enough as long as the 13 read factors are present or it fits within one of the nine categories, one of which is for the compilation, which has to be a specially commissioned work. So as far as a specially commissioned work is concerned, it can't be for the albums that predate the agreement and for the albums that postdate the agreement, you have to go through, there has to be instance and expense. So you have to look at the factors of whose instance and whose expense were those albums created along with the 13 read factors. And this record is not developed enough in order to do that. All right. Thank you. Thank you both for your decision. Have a good rest of the afternoon."
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"stt_transcript": "School v. Saunders. All right, Mr. Cortman, you've reserved three minutes for rebuttal, so that gives you seven out of the gate. The floor is yours. Good morning, Honors. My name is David Cortman. I represent the plaintiff's appellants in this case. May it please the Court. This Court has already ruled twice on the same town tuition program in both French I and French II, ruling that keeping out religious schools was a free exercise violation and ordering the state to include them. The only difference between this case and those is that the state was a bit more careful this time not to use the R word. It didn't explicitly say religious schools couldn't be in the program, but it reached the same exact result. Defendants argue in essence that the three new exclusionary criteria, the 25%, the minimum class size, and the geographic location, just happen to keep out religious schools by happenstance. Yet it keeps in over 75% of secular schools and an unlimited number of in-state and out-of-state public schools. The requirement for the 25% town tuition was tied to the only year that the religious schools were allowed in the program by order of this Court, and which codifies permanently the religious exclusion. In other words, there's no way for religious schools to get in the program in the future. I'd like to start with the Tandon. It felt like a grandfather clause, I guess, from the voting rights errors in that it basically said you've got to have 25% enrollment to a part of the tuition school transfer program, but you only had one year to do it when in all prior years you weren't, you were expressly not permitted to do it. That's right, and that's a permanent codification. There's no way to undo that in future years, and so it basically cements it. So independent schools, non-sectarian schools that also felt prey to that are eliminated also, right? They are. So how does it eliminate just exclusively non-sectarian schools? It's true. No, a scalpel, if it swiped and caught up some independent schools that don't have religious training. Well, I would add a couple things. It's not identifying just religious schools, is it? Well, it is not, but I would say the object of it is. So the religious... The object of it? The object. Under Lukumi, the religious gerrymander is what was the intent of doing so? What was the object of it? So there, the court said, it might have been facially neutral because it didn't mention religion. And how do we measure that object? What do we take the temperature of all members of the state legislation, all 150 of them? No, what we do is we look at the background facts, all the evidence leading up to the enactment, all the history of it. So what are the facts that you pled that identified that this was the way to do it? What committee reports, what testimony, what affidavits do you have from individuals that identified that this was the way to do it? If you look at all the evidence, first you start with the history of the enactment, which is what Lukumi talks about. The history of the enactment is on the heels of not only decades of religious schools being excluded from the program, but this court twice saying that even though the Supreme Court said you have to include in religious schools, that the state still kept them out, which led to the third lawsuit. And then when you look at this particular case that was ongoing, in the middle of the case, the legislature changed the law again after one year of religious schools being in to make sure that 100 percent. So I understand Your Honor's point that several of the secular schools were out, but there were 75 percent of the secular schools still in the program, yet 100 percent of religious schools are out of the program. When you look at all the statements from the legislature, which by the way, I'm not talking about hostility, I'm just talking about the object of the law. And what Lukumi said is you look at the object of law in its real effect. In its real effect is 100 percent of the religious schools are out. When you look at even the legislative record, I believe there was 38 different legislatures over the time period that the law was being considered. There were several predecessor laws over to Act 73. Was 38 enough for a majority? Excuse me, Your Honor? Was 38 enough for a majority? It wasn't, but we don't need a majority. This court said it was not. This court said a sizable portion, and I would say that 38 is a sizable portion. When you add that to all the other history and things that happened. But I want to touch base with Tandon real quick, because Tandon, none of this stuff matters. And the reason I say that is Tandon looks at what's going on. You don't need the history, you don't need the object, you don't need the numbers. It doesn't matter what numbers, whether there's 75 percent or the defendant's number of 55 percent. Tandon says if you have a program, you have to treat the religious schools the same as the best treated secular schools. And it's no answer to Your Honor's question to say you're treating the religious schools as poorly as some of the secular ones. And that's why Tandon, I think, is the most direct route. So let me ask, I sort of interpreted Tandon to say that if you're grouping things, your groups have to actually be proper groups relative to the purpose that creates the restriction in the first place. Yes. And so one of the things that I didn't see in your brief, and that I think probably one would have to do if you were challenging the fact that there are other categories that aren't subject to the same requirements, is do a granular assessment of each category to think about how it fits into the state's rationale, right? So one of the big categories is the therapeutic schools. Right. Now, am I right in understanding that the therapeutic schools are schools that a parent can't just say, I want to send my kid here. There actually has to be a student that the school district can't service, and the school district agrees to send a student to that school to discharge that school's federal obligation to provide a fair and appropriate public education. Am I... I believe that's correct. Correct. And I would add to that, it's a good point, Your Honor, that all of the private schools, including Mid-Vermont, have to be set up to take students in the IEP programs. I understand, but these schools are, these are for people, this is not just a regular student on an IEP, these are students on IEPs who cannot, whose needs are so great that they cannot be met in a regular public school system. Right, but can be met in Mid-Vermont. Pardon me? But can be met at Mid-Vermont. So in other words, Mid-Vermont is set up to take, by law, IEP students. So that student doesn't have the same choice, that student... So you could certainly get licensed or certified as a therapeutic school, but these schools are schools for students whose needs are so great that they're not a mix for a population. Well, not exactly correct, and that's why I just wanted to address that. So the private schools are required to be set up for IEP students, it's one of the requirements. So a public school may not be able to service them, but certainly Mid-Vermont and the other private schools are. So that's... Public schools have to be set up to take IEP students as well. It's not any old IEP student that qualifies to go to a therapeutic school. Right. Yeah, well, Your Honor's hypo was that the public school couldn't service them, so that's what I was basing it off of. So they may be set up. All my point was is that IEP student could then go to any other school, a therapeutic school, but if he wanted to choose or if she wanted to choose Mid-Vermont, even though they're set up to take her, she's not able to get the tuition money there. So help me understand that. I didn't understand the therapeutic schools to be sort of somebody's got a tuition opportunity and they get to choose where they go. I understood that they go to the public school, especially if they're in a district with a public school, and that that public school has to conclude that it can't meet their needs and has to contract directly with the therapeutic school. I don't know if it's required that the public school says it doesn't meet their needs. I think they could go regardless. But I do want to go back to Tandon because I think it answers Your Honor's question, and that is what's a proper comparator under the law, and I think this is a legal question. I think the error by the other side in the district court is, well, those schools are different so we don't count those. But if you look at Tandon, it was comparing at-home secular gatherings, which, by the way, applied both to religious and secular gatherings. And the dissent said, look, you don't compare restaurants and movie theaters and hardware stores to it. That was dissent. The majority said those are proper comparators, even though they're different in kind, and at-home religious gathering is different from a hardware store. But it still compared them and said that's a proper comparator. So to say the therapeutic school is different or the tutorial schools are different or the other schools are different, they're still proper comparators under Tandon because they're exempt from the program. Yeah, so I guess I think I read Tandon a little bit differently, and I thought in your brief you presented Tandon more the way I understood it, which is that not any categories aren't okay. If there are categories, you lose. It's that the categories have to be tied to the rest of the government. Advance to the government interest. Yes, and I'll... Yes. So we can... So what I'm trying to figure out is what you haven't done is a granular explanation of each of these other categories. If the rationale is we want to promote our interest in controlling costs, dealing with declining enrollment, fiscal sustainability, by limiting tuitioning to places necessary to fill historic gaps, reduce expenditures through system-wide consolidation. We don't want to be sending dribs and drabs of Vermont education dollars to lots of little independent schools, religious or secular, all around. If that's your rationale, don't you have to ask before you say these other categories compare whether these categories even describe schools that would be getting public dollars or tuitioning dollars otherwise? No, I think the correct part of what Your Honor just said was does it advance the government interest to say religious schools should be out and other schools, including therapeutic schools, should be in? And our argument is it doesn't advance the government interest stated, as Your Honor mentioned, to keep out religious schools and to keep in secular schools. And here's why. Let's just take them one at a time. So cost. The government here, the state here advances cost as a reason to keep out the religious Well, you're going to give me an answer that's way at this high level, but it's not the precision. This is the most transformative legislation in Vermont public education since Act 60. And I would say that it's 150 pages is Act 73. We're only taking issue with one page. The other 149 pages tell us a lot about the purposes and the dynamics and what's going on here. And if we looked at this one page in isolation, we might draw very different inferences about what the legislature is trying to accomplish with these rules than if we read the other 149 pages and realized that this bill is creating very painful closures of local public school systems, our public schools and communities that are going to be devastated by them. It's not singling out religious schools in any meaningful way. Well, I disagree. But what you have to look at is what's the government interest that the state is claiming? I'm not saying what these are. The state puts forward in its brief its government interest 20 different times is cost savings. So that's why we're looking at cost savings, not because we said it's the interest, it's because that's what the state said. And when you look at cost savings, it's actually cheaper to keep the religious schools in the program because they're less expensive than all the other schools that that student has a right to go to. Don't forget the tuition money follows the student, not the school. So once, for example, OPR client is in a sending district, it's a district without a public school, then the state's required to pay for them to go to another school. And it says, well, we're trying to save money. The problem is it's actually spending more money by keeping out the religious schools because in the record we've shown that religious schools are cheaper. So now OP can go to any public school or other private school and the state's spending more money so it doesn't further their interest that your honor talked about. But no bill of 150 pages has a sole goal. And I would say that containing cost is not even how I would define the goal of this. What's the way they define it? They're trying to keep, for purposes of the section 21, what they're trying to do, whatever the provision is we're looking at. The purpose is to try to keep as much money as possible in the system, in the public system. But there's no proof that it does that. See, that's the other problem. I mean, maybe we should focus then on the out-of-state public schools that are exempted from all the requirements that the religious and independent schools are. Right. And then the state's money can go, Vermont's money can be sent out of state even more expensively than allowing religious schools in the state to go in. There's no limit to the number of schools, out-of-state public schools. Your Honor, it talks about any interest they put forward is not furthered by allowing out-of-state public schools in the program. Not public school consolidation, not cost, not anything Your Honor raises. And they're exempt from the same requirements that we're talking about here for Mid-South. So if the out-of-state public schools are treated more favorably than the religious schools, isn't that enough under tandem to say this is not generally applicable? It is. It is. And I agree, and I would argue that all the other exemptions and the fact that there's still 38 independent secular schools that are private in the program is enough for tandem. But I agree, Your Honor, it's all you have to look at as the out-of-state public schools. We just think there's multiple layers. So talk me through, and I apologize because there may be a lot more robust record on this than I've read. The out-of-state public schools, is there evidence about the circumstances under which people avail themselves of that option? And I'm assuming it's border, it's people along the border who don't have a public school accessible to them. It is not limited to border schools. There are border schools in our interstate programs, but it's not limited to border schools. But there's no geographical requirement at all, right? That's exactly right. At least as written, it could be a school in Montana, couldn't it? Yes, it could be. That's exactly right. And historically, there were schools in Canada. Right, because Canada's a bordering state. All the point is it doesn't have to border the state. It could be anywhere due to that. Okay, is there any evidence? In other words, it matters not just what the rules on the paper are, but what the reality on the ground is. As long as it's not after the fact created reasons, yes. Right. So one of the things I'm trying to understand is, if the evidence is that there are places in the state where there is no public school, no qualifying independent school accessible, those are the ones who are going across the river or going across the Canadian border in the Canadian case, that or the combined school districts, that would look very different from people regularly flying to Montana on Vermont's dime in terms of the purposes of the tuitioning program. The reason why people would go out of state, we don't know, but there's no geographic limitation to where they could go. Right. I understand that. There's no evidence about that. There's no evidence that any of the interests that are proffered by the state are furthered by keeping out the religious schools and keeping everybody else in. That's the question in tandem. So I understand Your Honor is looking at the grouping, but the point is, what the Court said there is, is a religious at-home gathering the same grouping as a restaurant and a movie theater. The Court said that's not what you look at. What you're looking at is the government interest furthered by keeping in the restaurant and keeping out the religious home gathering, and the Court said no. Religious schools aren't kept out of being therapeutic-approved independent schools. They're not kept out of sponsoring approved education programs, and they're not kept out of tutorial programs. But it's the wrong question. So Tandon addressed that exact question. The state in that case, California, argued that the people from the religious home gathering, they can go meet at a movie theater. They can go to a hair salon. They can go to church on Sunday that have bigger capacity, and the Court said it's not the fact that they can do one of those other things. What we're looking at is can they meet at the home gathering, and I think that addresses Your Honor's question. I don't think so, because again, you still have to look at each of these categories. So let's say that one of the categories here is essentially for students, and I don't think it's a let's say. I think it's the tutorial program, but it might be the approved education program. You've got kids in state custody. Sure. And so this is not a program that could be sort of fit within the normal public school framework, and it's not a program that would make sense to put the kinds of geographic and class size limitations, because it's its own thing. And there's nothing that says that religious schools can't compete to provide that service, but it is a different service. It is, I would say, two responses. Under that scenario, the religious home gathering can go to a movie theater. They can go do the approved. It's the same point. You have to ask whether the movie theater is the same for the purposes of, and let's assume that the court was right. There wasn't much of a record to look at spacing and other things, but let's assume the Supreme Court was right as an evidentiary matter, because it assumed that a movie theater, having the same number of people at a movie theater is functionally the same in terms of risk as having the same number of people in a home. That's why it's not okay to treat them as different groupings. I think you have to grapple with what each of these categories requires and does to figure out whether it's the same with respect to the state's goals, not at some high cost. Well, I would disagree, and the reason is it's up to the state to advance the government interest that it claims. The only interest they could claim is, well, that school serves, I think, gaps in the public education program, which Your Honor was referring to before. You have to look at what the government interest is. If the government interest is, well, we have a gap in our public education, so we need those schools, what we would say is there's a gap in your education for religious schools. You can't elevate a secular gap for therapeutic schools and not elevate the gap for the religious families here that are called to go to a religious school. But you still have to identify whatever the government interest is. We can't just say the school is different because Tandon already addressed that. But the state has a legal obligation to provide, for example, adequate education for students who require IEPs that can't be met or aren't being met in their public schools that qualify for a therapeutic school. Right, and the same point could be made for religious students. The state has an obligation to provide religious education at a religious school. You're saying that the state has an obligation to provide religious education for students? It has an obligation to provide for education for every single student. What the discussion was, for the people who need the therapeutic schools, there's a gap that the public school can't provide for. And what we're saying is there's a gap for religious families whose religious beliefs say we need to go to a religious school. So doesn't that prove too much? I mean, that's not just an argument about tuition. What you're saying is if you're going to have a public school system, you need to build in a mechanism for providing religious education for people who want to incorporate that into their schooling. No, what we're arguing is that if there's a public school system and you use private schools to fill in the gaps, then you can't keep out religious schools also. That's all we're saying. So the state doesn't have to allow it. Based on the fact that they're religious schools, but if they use a formula that's neutral and not designed to keep out religious schools, but it happens, the effect happens to be that it does, then what's the violation of the free exercise clause? If that was used in neutral principle, it doesn't in any way select based upon the fact that it's religious in nature, but it just doesn't meet what's necessary to provide a free and adequate education. Theoretically, that may be possible, but it's not what's been done here. But you're saying that the therapeutic schools all have to be considered? Is that it? Well, it's just one of the things that has to be considered along with the other ones. The therapeutic schools identify a specific population with a specific educational need that's not shared by the other members of the public? It undermines the government interest in the same way as a religious school. So you're equating someone who's learning disabled with someone who desires to have a religious education? Is that it? No, what we're looking at is what is the government identifying as the interest? And if the interest is a gap where public schools don't satisfy it, all we're saying is that there's a gap for the religious students too. That presumes that they have an obligation to fill that gap, the religious gap, whereas with regard to a student that has a learning disability, that's completely different from a religious preference. Sure. As is a restaurant different from a home gathering. I'm sorry, the analogy doesn't work for me. I appreciate that, Your Honor, and that's fine. And we could stay with the out-of-state schools. I think that undermines all of their interests. I'm trying to understand how an out-of-state school being exempt from all the requirements of the religious and independent schools advances the goal of streamlining the state's education system and making that system more cost effective. I think I know your answer to that, but that really is the argument that gets you where you want to go. It is the easiest argument to get where we want to go, yes. So maybe we should stop there. We'll hear from Mr. Stratton and then we'll hear back from you for a summary vote. Thank you, Your Honor. May it please the Court, Sam Stratton for the State of Pelley's. I want to start with this point about the out-of-state schools that Your Honor was just picking up on. I'm happy to get to the rest of the argument as well. But to answer that question about how it advances the state's interest, out-of-state schools have a long history in Vermont's public education system, and it's distinct from the way that independent schools are used. Out-of-state schools are largely used by border communities where there's a whole community where the closest public school for them is an out-of-state school. Vermont also has a long history of not allowing people to go to religious schools, so I'm not sure that that's going to help you very much. But how does using these out-of-state schools advance these two goals, streamlining the state's education system and making the system more cost-effective over these religious schools that might be closer and cheaper? Yep. So cost-effectiveness has two elements, Your Honor. So it's both reducing costs and increasing or at least maintaining a certain level of quality. And the out-of-state schools address both of those interests. So, again, as I mentioned, out-of-state schools are primarily used by whole communities where that's the closest public school for them. So large groups of students are attending these out-of-state schools. There's no requirement that large groups do it, right? No, certainly not. And if it's one student, it's fine, whereas the other, the independent schools need to have 25 percent town tuition enrollees, right? Certainly, Your Honor. You're talking about the facts confronting the legislature with regard to the reality on the ground in Vermont, is that it? That's right. As opposed to hypotheticals sending someone to a New Mexico school. Exactly, Your Honor. Go ahead. Exactly, Your Honor. And, you know, certainly if we're talking about program design and, you know, how we might have written it, maybe it'd be different. But what we're talking about here is what the state's interest is. And the state's interest in funding out-of-state schools is that there's administrative savings by funding a school where 20 kids from a particular border town all attend that school. Whereas the in-state, the town tuition program, which is the independent schools, whether they be secular or religious, those schools are chosen by individual parents. And so the funding doesn't necessarily have the same sort of administrative economies of scale and cost savings, which are one of the major motivations behind this whole act. Wait, you're saying out-of-state schools are not chosen by the parents? They are chosen by the parents, but they're chosen generally en masse in groups. And so there's more of a… What does that mean, they're chosen en masse in groups? Particular towns, lots of families… No, no, no. If I live in a particular town that doesn't have a school district, I'm allowed to choose where I want to send my kid to school within the parameters of the law, right? Correct. And if I'm the only one in my school district who wants to go to the out-of-state school, nothing prohibits me from doing that, right? That would be right, Your Honor. But if I'm the only one who wants to go to a religious school that's right down the block, I can't go if they don't have 25% enrollment of town tuition in students, right? That's correct, Your Honor. And so how does that distinction further either of these two goals? I think, as Judge Wesley mentioned, it's about the facts encountering the legislature on the ground. What does that mean? How does this advance what I just described, the hypothetical I described? How does that advance cost savings, making it more cost effective? Well, when we judge the sort of cost effectiveness of a policy, we judge it based on the program design and not necessarily on the individual results of the policy. So here the program would— But then we can never lose, right? That's what you're saying, basically. No, no, certainly not, Your Honor. We could lose if the program were designed in a manner that plainly wasn't related to cost effectiveness. But we're saying that this is related because with respect to the out-of-state schools, there's, again, a practice on the ground of towns where large— A practice on the ground? Wait, I don't understand. I just gave you a hypothetical that I can choose between two schools, a $10,000-a-year religious school that's right across the street or a $15,000-a-year out-of-state public school that's 10 miles away. And nothing prevents me from choosing the latter, right? That's right, Your Honor. And so how does that advance the cost effectiveness for—that's the stated goal of the state of Vermont? Because the state—I mean, I suppose the state could have imposed a condition where, you know, you have to attend the cheapest school available, but that's not how the legislature chose to design the program, and that's not what's required under general applicability. I know. Well— Because the state's trying to keep the dollars in as few schools as possible so that it can make sure those schools are sustainable, and I'm misunderstanding that. That's generally correct, Your Honor, yeah. Are there any constraints on the—it's interesting. I couldn't find any—I didn't look in the regulations. Are there any guidelines as to who—once you're in a sending district, are there any guidelines about out-of-state public schools? I'm not sure I understand the question, Your Honor. Limiting you as to what you can choose or how far you can go or anything like that, or is it— is there something in the law that talks about out-of-state public schools? No, no, there's not. More in more detail. No, there's not. They're eligible under the same section of the statute, and our— And then does the legislature have or is there record evidence here about— putting aside the hypothetical my colleague posed, in terms of the existing practice, is there evidence that there are a lot of one-offs, people going to—one or two people going to an out-of-state school from a district while others are going somewhere else, or—what is the evidence? I want to be careful about getting over my skis here because none of this is in the record. This wasn't developed below. My understanding from working with the state agency and the state board is that there are— there's some of that, but that the predominant practice is, as I mentioned, mostly communities where large numbers of students are attending. So why then not just make the 25 percent requirement that is applicable to independent schools applicable also then to out-of-state public schools? I suppose the legislature could have done that, Your Honor. But they didn't. No, they didn't. And so doesn't that make this less favorable on its face? It would if— For the independent schools. It would if we accepted the premise that out-of-state schools— out-of-state public schools are comparable to in-state private schools for tandem purposes. So if we accept that premise, then yes, Your Honor, that would be the case. But why would they not be? I guess I'm trying to— The explanation you said is that, well, in practice, a lot of— a large percentage go to the same out-of-state school. And so it's probably close to the 25 percent requirement that applies to independent schools. But it's not a requirement. No, it's not. And the question is whether the criteria that govern are designed to address the legislature's compelling interest here, which, you know, that's what the court mentioned in Tannen, is whether we judge comparability based on the state's interest at play. But in your interest, I mean, I keep asking you, how is your interest in cost-effectiveness advanced by this? And you assure me that, trust me, in practice, a lot of people go to the same out-of-state school. Well, I think there's—I think it's not about the specific results. It's about how the program is designed. And I think, again, this may be a broader point about general applicability that we're mentioning. The statute makes a strict requirement of 25 percent for the independent schools, right? Correct. And it doesn't do that for the public schools, right? Right. And you're saying the reason for that is what? The reason for that is the legislature determined, based on the record before it, that out-of-state public schools are generally used by communities. And so the sort of cost savings, the administrative economies of scale cost savings, are baked in, at least to a degree, with respect to those schools, in a way that's not true for independent schools in this case. Is there any contention by your opponent or record evidence that shows that that presumption is wrong? There's nothing in the record that I'm aware of, Your Honor. It calls into question that it's fake facts. Nothing that I'm aware of, Your Honor. Do they contend that your characterization of the legislature's motivation, that it was something like there's a community, there's a Vermont community, and there's a New Hampshire community? The school's in New Hampshire, and therefore a substantial number of kids go across the border and go to school in Vermont. Is there a contention that that's not the case? No, not that I'm aware of, Your Honor. And, in fact, most of the schools, most of the students who are attending these schools, are doing so under two interstate public school districts. They're somewhat unique. There's two of them on the New Hampshire-Vermont border, where the high school happens to be located in New Hampshire, but they are, for legal purposes, Vermont school districts. So part of including this eligibility and not conditioning it on enrollment patterns is keeping those districts eligible. Otherwise, there would be a legal issue as to the eligibility of those districts going forward, where, as I understand it, in both of those districts, most of the students and maybe even a large majority are from New Hampshire, but certainly the majority in both districts. Do the records reflect whether there were available sectarian schools within those border communities that somehow then suffer as a result of the fact that the kids can go across the border schools on tuition, but they can't go to school at the sectarian school? I'm not aware of anything that precise on the record, Your Honor. I've never heard your opponent identify any. Yeah, I'm not aware of anything that precise. I think that the record generally would suggest that that's possible. I don't happen to know where all the sectarian schools are based. Does the record, I was just going to ask you, does the record reflect as to where the locations of the sectarian schools are with regard to population bases in Vermont? To some extent, Your Honor. So in the record, there is a school directory. There are two school directories from before and after Act 73 was enacted, and those do list the locations of the schools. We also have a cheat sheet that was used for the hearing that the agency prepared to sort of list which schools met the geographic and enrollment criteria. The agency doesn't track. No one in the state tracks a school's religious affiliation. There's some self-reporting. There's some ability to infer it from the name, but on some level we're relying on appellant's representations here about which schools are religious. So to answer your question shortly, it would be possible to derive that information from the record, but it's not sort of plainly stated anywhere. And how about class size requirements? The out-of-state public schools have no class size requirements either, right? The out-of-state public schools do not, no, Your Honor. And so what would be the basis for distinguishing between schools that are independent and out-of-state public schools with respect to class size, given the stated goals of the legislature? Well, part of it is that the state of Vermont can't legislate class sizes in New Hampshire schools, and that would, I think, pose a comedy issue that the state, I suppose, chose to avoid by not imposing that requirement. But the state of Vermont doesn't have to pay for out-of-state public schools, right? No. It chooses to and doesn't impose a class size requirement, right? So it does have to pay for two out-of-state public schools. In the Dresden School District and in the Rivendell School District, the Dresden one was actually created by an act of Congress, so Vermont is federally required. Well, just answer my question. But with respect to other schools, no, it doesn't. But the legislature, you know, reasonably chose to not impose that requirement. But you can't just put reasonably in front of what you're about to say and think that that covers the problem. So how are the stated goals advanced by allowing out-of-state public schools to have class sizes of whatever, 12 in a class, but requiring the independent schools in Vermont to have 15 or 18? I see that my time is up. Can I? You can answer. Thanks, Your Honor. So I guess I would say two things to that. First, I do want to know for the record that the class size requirement isn't currently in effect. There's some issue about that in the briefing. So the Act 170 that the legislature passed this year kicked that deadline out until the rulemaking has gone into effect. But it's not going to affect out-of-state public schools regardless, right? It's not going to affect out-of-state schools. So address that on the merits, Your Honor. I would say that, you know, the question is whether or not the state has, again, an interest in ensuring a certain amount of cost savings and a certain level of quality. And I guess with respect to the out-of-state public schools, the state determined that New Hampshire or New York, as it were, or Massachusetts school board is sort of achieving that in some way. And those states actually have. You guess that they're achieving it in some way. I think the legislature made that finding or made that determination, and that's what is guiding this. You know, the legislature expressly did make a finding that those schools are educating students on a cheaper basis. Vermont had one of the most expensive, if not the most expensive, I need to check the record, education systems in the country on a per-pupil basis. So all of its bordering states were cheaper. You can make that argument and then just ignore the fact that the mid-Vermont is cheaper than the state schools, probably in and out of state. Well, again, general applicability is about how the program is designed and what rules are applied. It's not about the particular results and whether each individual… Right, but the rules are written in such a way that it is irrelevant whether it's a cost saver or not. It seems hard to argue that this is a rule of general applicability or that that stated goal is a sincere one. No, Your Honor. I mean, whether we're talking about… Because we really want to save money and we're allowing people only to go to schools that are more expensive. I wouldn't put it like that, Your Honor, but I think that if we got to strict scrutiny, then this conversation would be more appropriate and we're talking about whether this is the best way to design the state's program. Although, even then, perfect tailoring isn't required, only narrow tailoring. But we would suggest that we're under rational basis. And even before that, the court shouldn't import its strict scrutiny analysis into the threshold determination of whether or not a law is generally applicable. And I think that's what plaintiffs or appellants are asking for here in getting down to this granular, school-specific, student-specific cost-saving analysis, when, in fact, the analysis required under Tandon is whether the rule, not the outcomes for particular parties, but whether the rule that applies to groups is furthering the government's interest or connected to the government's interest and the legislature has made findings to that effect. And we would suggest that that's… Go ahead and finish your thought. I apologize. We would suggest that's the case here. Is there a finding or any contention that costs… What are the costs in the context of the overall cost per pupil under the old system and now under the current system? Do you know? I don't recall the exact figures. I know that there's a cap on how much towns can pay to receiving districts. That cap is, I think, $18,000. And that's the statutory limit, so there's some cost savings baked into that as well. But I don't recall the exact part. Cost savings goes beyond just the tuition question, doesn't it? Sorry? Cost savings goes beyond just the tuition issue in terms of the state's obligations. There are other factors that play into what it costs to educate a student in Vermont, beyond just the tuition payment system. That's true, and certainly at public schools, there's a bunch of overhead, and there's even overhead at receiving schools, whether they be out-of-state public schools or independent schools. There's administrative overhead associated with sending students to a particular school, and that overhead is going to be relatively inelastic with respect to the number of students. What's the percentage of population decline in the Vermont student population in the last 6 years or 10 years? I don't have the last 6 or 10 years. I know that in the last 20 years, it's about a quarter of the population decrease, so that's pretty substantial, and that's what motivated the act at issue here. I mean, when the governor announced the act, it was all about public school consolidation. The private school, independent school aspect is sort of a sideshow in the main act, as I think Judge Robertson was mentioning, and it certainly is connected to the interest, as we've explained in our briefs, and I've explained again today, but the real motivation here is about the cost savings on the overall system-wide level. Has the population of the state itself experienced a 20% decline in population? I believe that it's experienced a lower decline, or at least not an increase. It's just gotten older. Right. The population is aging, Your Honor. And declining birth rates. Yes. Similar experience being experienced in upstate New York, smaller school districts, smaller classes in many of the rural schools in upstate New York. It's true throughout rural America, to my knowledge, Your Honor. Can I, like, we've talked a lot about cost. When I look at least at the articulation of the state's interest in your brief, it's a little more nuanced than just cost. It deals with cost, but also fiscal sustainability. And I understood that, again, the next sentence says, it promotes that interest by limiting tuitioning to places where it remains necessary to fill and store gaps in public education delivery and reducing expenditure due to system-wide consolidation. I understood that to be saying, independent of the per-pupil cost at a particular place, we want to keep as many dollars as possible within as confined a system as possible to support the sustainability, rather than sending some money here, some money there, some money there to little independent schools all over. Am I... No, I would say that's right, Your Honor, and I apologize if I haven't been clear on that today. Yes, the cost, again, isn't about sort of granular cost savings per school or per pupil. It's about sort of creating a system that's going to work both now and in the long term for funding Vermont's rural aging and perhaps declining population. I see the amount of time. I want to make one quick point on the therapeutic schools, which were subject to some discussion by my colleague, if that's all right. I just want to note that the therapeutic schools, again, are statutorily required by the federal government. So, you know, if Appellant's argument is true, that those schools are comparable for tandem purposes, then every state in the country would have the same obligation to fund religious schools under sort of the same theory today, regardless of whether the state has a town tuitioning program or a voucher program or anything similar. We don't think that's what Congress intended when it enacted the IDEA or the Rehabilitation Act, but that would be the upshot of Appellant's tandem argument, specifically with respect to the therapeutic schools. All right, thank you. Thank you, Your Honor. We'll hear from Mr. Cortman for three minutes of rebuttal. Thank you, Your Honor. Just a couple of points in rebuttal. The money follows the student, not the school. So when the student doesn't have a choice to go to a religious school, necessarily more money is being spent by the state. The average tuition spent for public schools is actually in the record. It's at J.A. 681. It's $22,638. That does include the buildings and the overhead. That's the state's own number. So $22,000 is the average, and the religious schools are anywhere from $10,000 to $18,000. So there is no cost savings, and that was my point. The government interests are not being advanced. Even the interest of keeping them ______. Cost alone isn't the only government interest, is it? It's not, but it's one of those. So is it the determinative interest? You're presenting it kind of like that it is, and I would suggest to you that it's not quite that simple in public life. Well, all we can go by is what the interest that the government puts forth, and so if it puts forward several of them, I'm just addressing each one. You're saying that the government put forth cost is the bottom line? Not the bottom line, but the most stated in its brief 20 times, more than any other interest, and that's why I'm addressing it. Streamline the state's education system, make the system more cost effective. Right. No, it's streamlining. Yes, and 20 different times in the brief, which is why I started there. It was the most stated interest, which is why I went there. Not less cost, more cost effective. Deliver the dollars to where they do the most good. I would believe they're synonyms because it counts all the other costs in it. It's not just average dollars, it's buildings. But also, too, the council mentioned about keeping the dollars in the public schools. That interest is undermined for every out-of-state public school and for every in-state private secular school. So these government interests, as I mentioned, have to be furthered by the program and the requirements. They're not being furthered because they're not keeping money in the public schools. How many out-of-state schools are there? How many out-of-state public schools? Tens of thousands? No, well, that are in the program. Currently receiving tuition payments of Vermont taxpayer money. I don't know, but on its face, there's no limit. It's unlimited. There's no requirement. I didn't ask you whether there was a limit or not. I know there's no limit. But I asked you what the number was. It's not in the record. And I would add one more thing, Your Honor. It's defendants' burden to prove all the questions that Your Honor asked. They have to prove that every government interest is furthered, not in general, by keeping out-religious schools and keeping in-sected schools. It's their burden to mention all the evidence that Your Honor asked the opposing counsel about. What about a brand-new out-of-state public school and a brand-new religious in-state school? Can a brand-new religious in-state school participate in the program? No, and a brand-new out-of-state public school can. And that is the point. If there are no further questions, I rest. Great. Thank you. Thank you. All right. We'll reserve decision."
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"stt_transcript": "So, parties are here, I'm told, and I'm told the Council is present for the other cases as well. Mr. Rosensky, am I pronouncing that right? Yes, Your Honor. Good. All right. You've reserved two minutes for rebuttal, so that gives you eight minutes out of the gate. The floor is yours. All right. May it please the Court. Andrew Rosensky for the appellant. Karen Putz. Karen Putz is profoundly deaf, and like most deaf people who want to go to a fast food drive-through, they can't order at the speaker box. So what they typically do is they bypass the speaker box and they go to the window to place their order. Most of the time, it's very easy and not an issue. But here, on November 19th, 2021, Ms. Putz pulled up to the window of the Taco Bell at Lehigh Station and told the employee at the window that she's deaf and could not use the speaker and gave her order. The general manager on duty told the employee to close the door and told her, in her words, she was not going to serve her unless she came inside. She said it loudly enough. There's no real dispute on the facts, right, Mr. Rosensky? Yes. Is there? I think that there may be some dispute on the facts as to whether those facts are admissible or not. But in terms of the facts, I don't think there's a dispute. So there are basically three sets of action, the causes of action. You've got an ADA claim, which is seeking injunctive relief under Title III. You've got a Rehabilitation Act claim, which is for damages. And then you've got some state law claims that are generally parallel to the federal claims, but at least include damages, right? Yes, sir. So maybe we should start with the damages claims first because the district court dismissed the claims for damages because the ADA claim had been dismissed, right? Right. But the dismissal for the ADA claim was based on the fact that there was no need for injunctive relief because there was no likelihood of future violations. Am I right about that? Yes, Your Honor. Well, I think you take a different view. It seems to me that in your brief, you suggest that the district court sort of was confused or basically said that you get one free discrimination before you can be subject to a Title III. But I don't think that's what the district court said. It seems to me what the district court was saying is that there's no need for an injunction because the policy was in place even before this happened. It was not properly applied, but it's been remedied since, and so there's no likelihood of this happening again. Do you think I'm wrong about that? I think the policy that Ms. Putz was asking to be modified was the policy that everyone has to order through the speaker box. Right, but I mean, I thought Taco Bell or Hospitality Syracuse said that that's not the policy, right, that you don't have to. In fact, they even put a plaques to say that, right? They did that after Ms. Putz had the incident there. Well, they put the plaques up, but the policy, even before this had happened, people were able to, I thought the record was clear that people were able to use the drive-thru. Ms. Putz before had used the drive-thru, right? No, this was actually a new store, so this is the grand opening. So, Ms. Putz had not gone there before. But the individual stores don't have their own policies, right? The policy is a company-wide one. Well, they didn't produce evidence of a policy within Hospitality Syracuse that they serve people at the window in evidence. All right. I mean, it seems to me the problem with the district court's ruling on the ADA claim was that it didn't style it as a standing claim. But in Lugo and other cases, we've treated this as a standing problem. I think what happened here is that the court conflated violation with remedy. And I think, for instance, if you look at Special Appendix 15, she says that she was prevented from placing an order availing herself of the goods and services due to the employee's refusal to allow her to order at the drive-thru. But then two pages later, she said that no reasonable inference could be drawn that Taco Bell failed to take steps to ensure that no individual with a disability is denied services. So if you're talking about the distinction between violation and remedy, and I guess I'm still trying to understand your position on the ADA claim. In your reply brief, you assert that retrospective remedies keep this case alive, right? The damages claim. So I inferred from that that you were no longer contesting that regardless of whether the It's not reasonable to infer from her complaint that the discriminatory treatment will continue, which is the standard we've articulated for injunctive relief. I think Woods, the case in Woods, would be instructive on this case. Ms. Putz is deterred from going back there because of the discrimination, the complete barrier that she had experienced. And she actually went back later on with her son and was actually told to go around again eventually. After back and forth, she was served. But even after the incident, was told can't order at the speaker box. Is your position that injunctive relief on the ADA claim is supported by this record? I think on a deterrence view, yes. If the court rejects that the facts don't support that deterrence can confer standing based on previous violations in this case, then I understand the court's decision on that. Well, at the very least, the district court erred in dismissing with prejudice, it would seem to me. Because if it's a standing problem, that's by definition dismissal without prejudice. Do you agree with that? Yes, I do. I'm not sure if that matters, but that is certainly the district court dismissed with prejudice. Dismissed with prejudice and did not evaluate the damages claims that were on the other claims. Right. And so, I mean, the damages claims, it seems to me, that's where the district court really basically just said, as your ADA claim for injunctive relief goes, so go your damages claims. And so, why is that wrong? Because the way that she evaluated whether there was a violation or not was in error. For instance, I gave the previous example that Ms. Putz was completely denied from getting service there. When she was there, she had the police following her. No, I get that. I mean, I think probably the error is that the dismissal of the ADA injunctive claim was because of a lack of standing, a lack of, there was not a likelihood of future violations. But that's not a requirement for a damages claim. Damages claim is all looking back, it's not looking forward. Do you agree with that? You're exactly right, Your Honor. Yes. Yes. So, I think that she focused on the future and prospective relief, but she also made legal analysis errors as well. And I think one of the things that she was saying is that cases like PGA TOR and other cases are different than this case because Taco Bell did not have a policy to discriminate. But what we're saying is that this is a failure to modify policies case. They have a neutral non-discriminatory policy that everyone should order at the speaker box, but that adversely affects deaf people, so they need to make modifications, i.e. serving at the window. Right, but that is their policy. There's a plaque that says that, right, and they've trained their people so that anybody who wants to order from the drive-thru who's deaf can go straight to the window, right? That's what they say their policy is now, yes. Right, okay. But I take it your position is at the time, the practice of this store, regardless of what policy was written in corporate headquarters, was otherwise. Well, you know, because it was a new store, because they didn't really have anything in writing, the general manager who directed everybody to not serve Ms. Putz at the window, essentially by directing the staff to do that, set the practice or policy in that moment. Obviously, later on, it was informed and corrected. They put the signs up, but at the time, the practice that day was to not serve people at the window. Right, and that might be enough for a damages claim, but again, there would be standing on a Title III injunctive relief claim, there has to be a reason to infer that the discriminatory treatment will continue. Right. And so the district court made a finding that based on the record, there was no reasonable inference that this would continue. Well, some of the things that came out in discovery is that it didn't appear that people had been really trained. The staff members that were deposed did not recall having any specific training on this policy that Taco Bell later said that they had, and it didn't appear, except for comments from the regional manager, that he said that training had occurred, but there was no real documentary record. So I think the issue is, is this a question of fact for trial in terms of whether they actually have done enough for us not to have standing for an ADA claim or not, but that would be my view. I don't think that the evidence is so overwhelming that this will not occur again, or that they've gone above and beyond other than putting up signs on the speaker box to say that they will serve people at the window. So I think it's at least a question of fact, and if at trial the evidence shows that they have done everything that they need to do to cut out our equitable relief claim, then so be it, but I don't think that it meets the overwhelming standard at this moment. Great, thank you very much. You've got two minutes for rebuttal. I will now hear from Ms. Bach. Am I pronouncing that right? You are, Your Honor. Okay, Ms. Bach. Good morning. May it please the Court. Claire Bach from Bond, Schoenig and King on behalf of Taco Bell, the defendant appellee in this case. As Your Honors, as we've previously discussed, the facts are largely not in dispute here. And it seemed to me that Mr. Rosinsky was suggesting there are some factual disputes about whether or not this is likely to happen again. And so maybe we can start with that, if you don't mind. Sure, Your Honor. Well, as the District Court correctly found, I think the answer to that question is no for a multitude of reasons. First of all, as we've talked about earlier, so the Lehigh Station store was new. It had opened about a month prior to the isolated incident that occurred here. But the defendant also operates the Jefferson Road location, which plaintiff testified that she and her husband and family members have frequented both before and after this incident and have been able to order at the drive-thru with no problem. Shortly after even this subject incident, her son and she participated in kind of like a drive-thru with other hearing-impaired deaf members in the community. And they were able to go through and place their orders at the drive-thru, as Your Honor indicated earlier. We've since posted plaques, you know, outside of the drive-thru. Well, it's kind of like Mr. Wyszynski was suggesting. There is some dispute as to what training was provided after the fact and whether or not, people were able to access the drive-thru window as easily as you suggested. Are there disputes on that issue? Well, Your Honor, I would say that the evidence in this case really is no dispute. I mean, this was an isolated one-off incident that occurred, but it is certainly not representative of how people with disabilities are treated at the drive-thru. We have the testimony of the area manager who's worked for the company for nearly 20 years who said, you know, employees are trained on this. They know how to handle... Seriously, no one had been trained on this by their own admission prior to the day of the incident, correct? Your Honor, I think that I think it was... Did the manager say that there had been no training with regard to this? I think it was Your Honor, I think it was a little bit more specific than that. I think that the overall training was I recall the testimony being the golden rule that we want to treat everyone as though they're dining in our own home. The company's position was clearly stated in the employee handbook, correct? That is true, Your Honor. And the employee handbook predates the event by about eight years or so? That is true. I believe that that is correct. And didn't the manager say that there had been no mention or use of the employee handbook with regard to that provision? Notwithstanding the fact that this Taco Bell is, what, two miles away from the National Technical Institute for the Deaf? Your Honor, I believe that there was some testimony regarding, I think, to your point, the specific training on the ADA. But I will say that since then they did a recertification in 2023. the policy... But for some reason it didn't work when they were originally opening. So there was a glitch that happened and you say that the proof is unrebutted with regard to the fixing of it and so therefore there was no issue with regard to the likelihood of recurrence. Yes, Your Honor. There's really no reasonable inference to be drawn that this isn't an instance where we have repeated instances of employees being unable or not trained or unwilling to assist customers at the drive-thru. That simply isn't the case here. This is a case where this was an isolated incident. It happened on one occasion. According to all of the evidence in this case, that hasn't been repeated. That hasn't been an experience that the plaintiff or her family members have experienced on other occasions. And the plaintiff has admitted that it was not the company policy to require deaf individuals to come into the store to place their order. I know I've already belabored this, but Ms. Putz herself acknowledged that she's gone to Jefferson Row locations many times and has had absolutely no problem there. The significance of the one-off. I understand how that fits into the question of whether or not she can establish a claim for injunctive relief which has implications for the ADA claim. With respect to the question of whether it constitutes a violation of the substantive requirements of the ADA, is it your position that even if the discriminatory act is directed by the manager, it's not cognizable it's not a cognizable violation of the substantive requirements of the ADA if it only happens once? Yes, Your Honor, and I think that that's because under the two theories that have been proposed by the plaintiff here, the failure to modify the practices and policies, there isn't a practice that is representative of the company to not serve. There clearly was a practice that day in that store and it wasn't a line server who got confused it was the manager directing that this is how we're going to do things. Does the fact that there's a book somewhere in corporate headquarters that says something different negate the lived experience on the ground? I think, Your Honor, the answer is that it's maybe not as simple as that so this was an isolated incident I think we have to keep in mind that the ADA isn't a civility code it doesn't prevent against conduct that is rude or insensitive to folks with disabilities But this wasn't rudeness this was denying her a service that is available to others which is the ability to order your food and get it at your car That did occur, Your Honor The case law in this circuit and you look at the DeCarlo, the Walgreens case the Moe's excuse me, West v. Moe's those are two instances and that was at a motion to dismiss stage where the plaintiff alleged that they were trying to use the freestyle soda machines and they were ultimately unable to get their soda so similar circumstances unable to receive the goods So this was an affirmative denial of the service Well, Your Honor I think that she didn't get her tacos so that is not in dispute but I think that the one instance does not give rise to a viable claim under the ADA So let me ask, just sort of stepping back In an ADA public accommodations when I look at the statute, there's a general principle then there's a list of sort of general activities that are deemed to be a violation and then there are some other specific prohibitions Is it your position that a plaintiff has to plead and prove a violation of one of those specific prohibitions in order to make out an ADA claim? I get in this particular instance, Your Honor she has set forth two separate theories the absence of auxiliary aids and services and the failure to modify practices and policies and I think in this particular case the evidence it does not support either of those two theories She's clearly also alleged generally that they denied her the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages or accommodations of an entity which is described under the activities that are generally prohibited. Is it your position that because she didn't specifically tie that argument to that subsection of the statute she can't establish liability on that basis? Your Honor, yeah, I mean I think she's you know, we're at the point I mean she she has to, you know we're at the summary judgment phase where she has to put forth her proof to substantiate her claims She's put forth her proof, right? The facts are there and the question is that I'm asking you is does she have to fit them into one of the two legal boxes even if she's also arguing as I read the brief anyway generally that it's a violation of the ADA as the ADA is described in broader terms Does she have to fit her proof into a box in order to survive summary judgment? And when I say a box, I mean one of the listed things under B2 Yes, Your Honor, I believe that she does and that's what the District Court concluded that and that she failed to do so Sorry. Yes, please. It's not clear whether the District Court did conclude that The District Court basically said that the ADA injunction claim is dismissed because there's no likelihood of future violations and then said the other claims go with it because as the ADA goes, so goes the Rehabilitation Act and state human rights laws Right. And that's wrong. I mean, this is an interesting conversation, but it seems to me it's not what the District Court did The District Court went off effectively on the lack of a redressable harm because there was no likelihood of this happening again. Am I wrong about that? Your Honor, the District Court did conclude that there was not a likelihood of future harm. I believe that that is Yes, that is. Because what Ms. Rosinsky's argument is brief is that the District Court said one instance of discrimination can't give rise to an ADA claim and I think the District Court rejected that argument but instead said there's no likelihood of repetition. Am I wrong about this? Am I misreading? Maybe the District Court said more than I thought. You know what? I have her decision somewhere in here Just bear with me, Your Honor. Yes, Your Honor. Yes, I think Judge Baca did ultimately conclude that, Your Honor, that there was not a likelihood of future repetition, future harm. Right, that was the basis for dismissing the ADA claim. We've called that under Lugo and other cases we've called that a lack of standing and so lack of standing should be dismissed without prejudice but Judge Baca dismissed with prejudice. So would you concede that was a mistake? I wouldn't necessarily concede that that's a mistake, Your Honor. I think that Alright, well then let's get to the damages claims because damage claim, you don't need to show a likelihood of repetition. Damages claim is all about whether there's a past violation. But Judge Baca dismissed the damages claims, the Rehabilitation Act and state law claims for damages on the theory that these two fall because there's no jurisdiction there's no likelihood of repetition. Am I wrong about that? Well, I think that, Your Honor, the analysis was more that the state law claims are analyzed under the same governing framework as the ADA. Of course they're not though. Well, the ones for injunctive relief are but for damages they're not. I mean the ADA Title III injunctive relief claim requires a showing that there's a likelihood of repetition but a damages claim under the Rehabilitation Act or state law doesn't require likelihood of repetition. It could be just one grand, egregiously discriminatory act and that entitles somebody to damages if they can prove it. Am I right about that? Do you think that a damages claim requires a showing of future repetition? No, it doesn't, Your Honor. But I think that here the evidence is that this was a solitary incident. I don't think that it rises to the level of actionable discrimination under... A solitary incident in which somebody said we don't serve African Americans here your view would be that that's okay? No, Your Honor. But I don't think that that certainly wasn't the testimony here or the evidence here. I think my understanding is that the testimony was that maybe there was some confusion over how to handle the situation, that the window was closed and then you know she sat at the driver's seat. That was not the basis for the dismissal. The dismissal was not that no harm, no foul this was just a one-time thing and people were a little confused. The reason for the dismissal was you failed on the ADA claim and therefore you failed for the same reasons under the State and Rehabilitation Act claims, correct? That was correct, Your Honor, yes. Let's hear from Mr. Rosinsky Thank you, Your Honor. and then we'll get this show on the road. Yes, Your Honor. So I just wanted to to the extent that the court feels that dismissal without prejudice of the ADA claim is the correct avenue Well, the question is whether there are factual disputes or whether a reasonable fact finder could infer or conclude that there is a likelihood of repetition. So you raised some facts which I didn't notice some of them but I want to take a look, but to suggest that the training was not particularly thorough going forward that there was still confusion that it responds to whether or what the policy is so I guess if there are factual disputes then you might have something but if there aren't then I'm not sure you do. So I would I would direct the court to these joint appendix citations JA 223 to 225 where this is the 30B6 deposition of Mr. Prouty and he talks about what kind of things have happened since and that there was a recertification training in 2023 that they should provide pencil and paper at the drive-thru however but also too that I would also look to JA 1838 the response about the training and the policies and I would look to Ms. Palmol's deposition talking about how she does not recall either before or any sort of training on serving deaf people at the window and so I think that's at least enough to create a question of fact as to whether I do think that there is a case law that says that we have to be absolutely certain that whatever the problem is that has been remedied and that will not happen again that it's a very high bar in terms of whether they've remedied enough to moot out the injunction and I think that we should leave it open because I think that this case should go to a trial on damages anyway whether we meet our burden of proof that we should toss in the ADA injunctive claim because we're sending it back for the damages claims right? Right and I think that here I think that there's at least a question of fact whether Ms. Putz is entitled to injunction based on the testimony that from employees after the fact that they do not recall receiving such training and that that conclusively takes care of that everyone knows what to do and to serve customers and I think that's enough What's the hook, the federal funding hook for your Rehabilitation Act claim? They receive PPP funds and there's case law that says that the acceptance of those types of funds do make that entity subject to the Rehabilitation Act And there's no dispute that these acts took place during the pendency of the loan before it was forgiven? Do we have a record? I couldn't find in the record You know So It was forgiven that year the same year that Ms. Putz went to this Before or after the incident? That's right Yeah I'll have to But in any event, none of that was It was never discussed by the court at all There may be arguments that get made below There's no guarantee you're going straight to trial but the basis on which the district court dismissed for the damages claims seems to have been premised on a mistake of law Yes And I agree I think on the minimum the damages claim on the state law claims go to trial Obviously, I think that the Rehabilitation Act claims I think they should be analyzed If all the federal claims go, then the district court will have to decide whether to exercise supplemental jurisdiction on the state claims At this point after a discovery, maybe it will, maybe it won't But that's not our call either Correct, Your Honor Well, we got our money's worth, so thank you both Thank you"
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"stt_transcript": "Just give it one second, Mr. Donovan, as people are clearing out. All right, is the court ready? I'm sorry. That's right. We're ready. So you've reserved three minutes for rebuttals, and that gives you seven to begin. Thank you, Your Honor. May it please the court. My name is Jeremiah Donovan. I wasn't counseled below, but you've appointed me under the Criminal Justice Act to represent Henry Feliz Arias on appeal. On October 10th, October 6th, I'm sorry, of 2022, Dominican Customs Authorities opened up a package, a couple of packages, in the Dominican Republic and found seven firearms Henry Feliz Arias had sent to the Dominican Republic. Very shortly thereafter, the PSR isn't exactly specific as to the date, they made a controlled delivery to his mother, his mother's residence, arrested his mother, arrested his brother, seized his, seized motorcycles that belonged to him. While, during the course of the delay, he had been calling the freight forwarder asking, what's going on? You know, why is it taking so long to get there? And when he found out that his mom had been arrested, he called the freight forwarder and said, you guys sold me out. They took my motorcycles, my mom. I don't think that the order that he said that had to do with this, with the level of this concern for each. But bury yourself alive because I am going to come after you with all my people. Now, there's no dispute that that is a vile threat. The question is, was this, did he have the intent to attempt to obstruct justice? Now, the author of the pre-sentence report thought he didn't. The government thought he did, the defense argued he didn't, and the court found that he did. And so, the consequence of that was two points were added to his offense level, personally, to sentencing guidelines 3C1.1. And also, a consequence was he didn't have the opportunity to get two points off for acceptance of responsibility. So, it's a four point range. The judge sentenced him to a below guideline sentence if you add in those four but to an above guideline sentence if you take them off. We say, we said below, we say here, that this was just an explosion of anger at his mother being arrested and was not a serious attempt to obstruct justice. Right, and the district court disagreed. The district court disagreed. So, what, I mean, what is our basis for saying that the district court, well, I mean, I think you're arguing, first of all, the district court didn't make an express finding. Well, you know, I said that in my brief. The government pointed out another part of the district court's decision in which they, the district court did seem to, did say that. So, I can't, I can't continue to contend that. But you're still maintaining that it wasn't enough, this record was not enough to support the conclusion that this was an intent to intimidate or to. Exactly right, and here's why. Okay, first of all, you know, when he says you sold me out, he's talking about you sold me out to the Dominican authorities. There's no indication, at this point, at the time that he made the call, there was no American investigation going on. Remember, what happens is they take the, they take things that they found in the mother's house, phone phones and addresses, they take the serial numbers of the guns, and then they begin to investigate who bought those guns in the United States. But that was, that was, you know, probably a month, but the first time that they were investigating in the United States was probably a month after, after he made this call. And so, he didn't know that there was a, there was a, that there was an investigate, that there would be an investigation in the United States. Now, Judge, I recognize that each of the arguments I'm making in and of itself is not sufficient to carry the day. It's just that there are a whole series of these arguments that I think, in conjunction, carry the day. So, I mean, you, you've held that it's not necessary for a, for a defendant to know that there's a federal investigation pending. It's just, it's just simply necessary for him to know that some kind of an investigation, a state or a local investigation, may be pending. So, so, so that's the first point. Second, he took no action. He didn't, he never called back the freight forwarder and said, remember what I said? I mean, that's not required. I mean, like, right, if you make the threat, you don't have to follow up or make more. But what we're trying to do, Judge, is to figure out what his intent was. And, and, and, and this is a factor, I think, that indicates that his intent, that he was just blowing off steam, that he was just angry, but not that he was just angry and and that he had no intention whatsoever of, of, of, of following, following this threat. You should feel free to cooperate with authorities before or after you bury yourself. Say that, I'm sorry. You should feel free to cooperate with authorities before or after you bury yourself. Because the whole gang is coming after you. Well, I mean, but, but what he, but, but what, I mean, first of all, what authorities? I mean, I think he's talking about the Dominican, the Dominican customs authorities. Well, you sent guns from the United States to the Dominican Republic. They got seized in the Dominican Republic. It doesn't take a rocket science to know that you're going to trace it back to where it came from. And the guy who's been calling repeatedly over the last week about where these guns are is likely to be a target of that investigation. But what he says is. Anything I just said there unreasonable to infer? You gotta, you gotta, you gotta subject his statement to a careful literary exegesis. What he said was, you guys, you guys sold me out. So what he's angry about is what has happened in the past, not what might happen in the future. He doesn't say, he doesn't say, you better not talk to any federal authorities in the United States or I'm going to come and get you. But it seems to me you're making a distinction that this was, this was about retaliation and not about intimidation going forward. And that doesn't matter, right? If I'm going to bury you because I believe that you have cooperated in the past, obstruction would apply just as much as if the goal and the intent was to prevent you from cooperating in the future. Well, I mean, I don't know. Is cooperating with Dominican authorities, would that be sufficient? I mean, you've held that a threat against local authorities or state authorities, against cooperating with local authorities or state authorities gives rise to a 3C1.1 enhancement. You've never held that cooperation with foreign authorities is sufficient. I mean, you run a posits that you don't have to be a rocket scientist to know that if you, you know, if you ship things abroad, there's going to be a, there's going to be a United States investigation. I don't think I agree with that. I'm not sure. I'm not sure that this fellow would have, would have thought, oh, the feds are going to come after me as well as the Dominicans. I mean, his whole concern is with his mother and I suppose with his brother. He doesn't say that. Can I ask a question just about that? We're analyzing this one statement and I know it's a statement that I know that the court pointed to that one statement. I'm trying to understand how it fits. The victim impact statement says, ever since the moment his shipment was stopped, he started calling my phone and threatening my every move. He's gone as far as threatening my children. That suggests to me that, that the victim had identified a course of conduct, not a single angry outburst. Am I misunderstanding the record on that? No, but I guess that gives rise to the question of the extent to which the victim's statement can be, can be, can be relied upon in order to, in order to make a guidelines calculation. I mean, obviously I contend, I contend that it's a factor the judge can consider in sentencing. But, but the, the, am I remembering, I might be confusing this with another case. Did the court offer a FATICO hearing? No, there was no, there was no request, and there was no request for FATICO. There was no request for one. Right. Okay. Was it just a lack of request or did the court mention the possibility and the defense counsel said, no, I don't want to do that? Let me, give me a second to think. All right. All right. That's okay. I, I think it was not just not even mentioned. I, I think my, my, my brother will surely correct me if I'm, if I'm wrong. Have I, I've run out of my time, right? You're over, but you've got three minutes for rebuttal. Thank you, Your Honor. Okay. Thank you, Mr. Donovan. We'll now hear from Mr. Allison for the government. Good morning, Your Honor. May it please the court, Ryan Allison for the United States. I represent the government on appeal, and I did so in the district court. So I think the question that's presented on appeal is actually slightly different than the way that my friend phrased it. The question's not whether Mr. Arias had the obstructive intent, whether it was clear error for Judge Castell to find that he had that obstructive intent, and obviously it wasn't. Let me just start on that last point, Judge Lee, that you asked the question about the FATICO hearing. It's at the sealed appendix, page nine. Defense counsel said, that being said, Your Honor, my client is not interested in pursuing a FATICO hearing on the issue that's intent, and so I'll rest on my argument. So defense counsel actually brought it up herself and said, I don't want a FATICO hearing on that. It obviously wasn't clear error for Judge Castell to make the intent finding that he made, which is all that he was required to make. As Your Honor noted, Judge Sullivan, there are plenty of surrounding circumstances that supported Judge Castell's finding as to obstructive intent. Mr. Arias called the freight forwarder who had picked up the shipment in the United States and brought the shipment from the United States to the Dominican Republic and threatened an employee at that freight forwarder. So the person that Mr. Arias was threatening was involved in the criminal conduct that Arias had engaged in in the United This is at a very early stage of the investigation, as Mr. Arias surely knew. This gun had just been seized. His mother had just been arrested. Surely he knew that further investigation was forthcoming. Sure, I think Mr. Arias probably was angry, but so are a lot of people who commit obstruction. Well, the point is that anger and obstruction are not mutually exclusive. Exactly, Your Honor. That's the point. Many people can be both angry and have obstructive intent. And of course, Judge Castell relied on all those findings, on all those surrounding circumstances to conclude that a threat was made for the purpose of obstructing, of preventing the witness from continuing to cooperate with law enforcement in this investigation. So for those reasons, there was no clear error in Judge Castell's finding. I'm happy to answer any other questions. Thank you. My brother, of course, is right that the finding of intent is a factual finding that is reviewed under the clearly erroneous standard, which isn't good for me. But on the other hand, I would argue that when a district judge, a finding of intent isn't like a finding of fact, such as he said, I'm going to bury you and all your, you know, finding that he said this or said that, or that he did this or that he did that, but rather a finding of intent is made. How many times have you instructed a jury that, you know, we have no machine that's going to be able to tell us what the intent of a defendant was? So it's made in the context of the circumstances and of the actual words. And it seems to me that given that he took absolutely no steps, no other telephone calls to the person, no people skulking around the outside of the freight forward his home or his business. And in addition that, you know, my brother's right that one can be angry and intending to obstruct justice. But here it seems to me that this was just an angry outburst and the trial court. But is Mr. Allison also right that we're applying clear error, right? This is a factual finding that your client had the intent to obstruct justice. And you're saying that was clear error. I have to say, I have to say it was. I mean, you can see that's the standard, right? Right, right. That's right. So for all the reasons we've talked about today and all the reasons in my brief, I'd ask you, Morris, to send it back, tell the district judge, no, don't give him the obstruction. Take away the, give him the two points for acceptance of responsibility and resent it. Well, can I just be clear? No, I mean, you don't seem really to be arguing, at least not strenuously, that there was extraordinary acceptance here that would warrant a two-level reduction for acceptance, even though there was an enhancement for obstructions. I mean, your principal argument is there shouldn't have been an enhancement for obstruction and therefore he's eligible for acceptance. You know, I didn't get to that in my oral argument, but I do in my brief. I mean, what happened was, you can see in the transcript, the judge essentially says, well, okay, since I found the obstruction, therefore, I'm not going to give, I don't give him the two points for acceptance, as if it's automatic and the judge doesn't consider the question of whether this is one of those extraordinary circumstances. What is the argument for it being extraordinary circumstances? All of the, pretty much the same arguments that I've made with respect to it not being an obstruction. That is, he didn't do anything about it. He didn't, it was just a... That really goes to whether or not the enhancement was appropriate. I mean, I guess I'm trying to figure out are you really arguing that he extraordinarily accepted responsibility because he was abject in his remorse. He did something. Yeah. In my brief, I talk about that, but you know, he apologized. He apologized to the victim. He had a good prison record while he was in jail. He was stuck over at the MDC and the conditions there were terrible, but nevertheless... But those are not, I mean, things that go to the extraordinary quality of the acceptance responsibility, are they? The conditions of the jail? Well, I think, for example, his record in prison, that is, that he has no, that he had an exemplary record in prison. That's a kind of acceptance of responsibility, so... But is it extraordinary? All right. Well, we will reserve... That's the question for you, isn't it? Thank you."
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"stt_transcript": "made it very clear that you cannot contract around the termination rights. No, but you can actually contract around it by making it work for hire, because then there's not a... True, true enough as long as the 13 READ factors are present or it fits within one of the nine categories, one of which is for the compilation, which has to be a specially commissioned work. So, as far as a specially commissioned work is concerned, it can't be for the albums that pre-dated the agreement and for the albums that post-date the agreement. You have to go through... There has to be instance and expense, so you have to look at the factors of whose instance and whose expense were those albums created along with the 13 READ factors. And this record is not developed enough in order to do that. All right. Thank you. Thank you both for a reserved decision. Have a good rest of the afternoon. Thank you. All right. The next case is United States v. Donald, Wright, Hayes, and Jones. Mr. Pugh, I see you reserved one minute for rebuttal, you can begin whenever you're ready. Your Honors, may it please the Court. My name is Justin Pugh. I represent the appellant, Keyshawn Donald. Since 1994, this Court has held that the procedural and jurisdictional provisions of the Juvenile Delinquency Act do not apply to inchoate offenses commenced before the age of majority, such as the instant RICO conspiracy, where the defendant ratifies his participation after attaining the age of majority. However, this Court has never precisely delineated what is meant by, quote, a threshold demonstration of post-18 conspiracy activity, end quote, that being the language from United States v. Wong. Well, there's certain things we know that it's not, right? It doesn't need to be another predicate act. It doesn't need to be a crime. That much is established, isn't it? The statement that it doesn't need to be another predicate act, I think, is true. I think this Court has considered and rejected that argument. The district court below here, correctly in our view, determined that ratification could not be satisfied merely by an absence of withdrawal from the conspiracy, that it required some affirmative act, and that it required that that affirmative act be found, beyond a reasonable doubt, by the jury. And to the extent that ratification does require something affirmative, it must also be true that the defendant must commit this act with some measure of knowledge or of intent. Here, though, appellant's conviction, and federal subject matter jurisdiction generally, in his case, rests on evidence of post-majority activity that constitutes- Well, when you say it's jurisdictional, isn't it the case that if the indictment on its face alleges a violation that continues, that would be sufficient to give jurisdiction to the court to determine whether the crime was committed, right? I think that would bring the matter past a pretrial motion stage. I think the Court considered that in this case, considered and rejected that argument, and found that the allegations in the indictment were sufficient to bring the matter before the court. Right. And then the court did then, properly in our view, instruct the jury that it had to find- Right. And the jury then returns a guilty verdict, so they obviously found, beyond a reasonable doubt, what the district court said they needed to find. So really, the question is, is the evidence sufficient to do that? Correct. Correct. Okay. Correct. Your client possessed a weapon on the day of a murder. His prints are on the inside of the car that was used during the murder. He's with the, potentially, at least we draw inferences in the government's favor, the shooter from the murder. Why isn't that enough to show his continuing involvement? It doesn't have to be a crime. I know there's some suggestion that it, you know, he was involved in the murder itself, but even assuming that wasn't enough to demonstrate he was involved in the murder itself, it certainly shows his continuing association with the gang, doesn't it? I disagree. Well, for several reasons. First of all, let me just, it's not a murder. October 17th, 2019, there's an attempted shooting. Attempted murder. Right. No one was shot. No one was killed. It was a, it's, it. But he had a gun. He's with the other gang members. He's with one of the alleged shooters, right? The government describes it. Sorry? A stolen car. There is a stolen car, so, so appellant, Donald, arrives on a street, parks in an Oldsmobile. He's the front seat passenger of this car. Two other individuals get out of the car and approach what is a stolen car that allegedly was used in the shooting earlier that day. Appellant Donald didn't get out of the car. He didn't flee from police as the other individuals did. He was, he, he, the police ultimately determined he had a firearm on him. It was not linked in any way to that shooting. In fact, there's, there's, there's almost no evidence. I, I, I hesitate to say there's no evidence, but there's almost no evidence at all from which the court or the jury could infer that, uh, appellant Donald was involved at all. Where, where were the fingerprints? I, I found that somewhat confusing. They were on, my understanding is they were on the rear interior door handle. Of which car? Of the Altima, the stolen Altima. The stolen car that was used in the shooting. Correct. So there was, the jury could certainly infer from that, that he was present in that car at some point. It's not just that he's. He has a lift to the site of the, where the stolen car is parked after the shooting. It's that at some point before that, he, the jury could find from the fingerprints, had been in that car. The jury could infer that he had at some point been in that car. Yes. The car was stolen multiple days prior to the attempted shooting. There's no evidence whatsoever that appellant was involved in the theft of that car. There was a. But they just have to show that he's continually involved in the activities of the gang. And you have the car used in the shooting. You have the, again, drawing more inferences in the government's favor, the alleged shooter in his car. He's carrying a gun. Why isn't that enough to say he's, what, what other explanation is there for his involvement with a gun in that situation, other than that he's, he's continuing to operate as part of the gang? Well, from our view, Your Honor. What's the other explanation for what he was doing there with a gun in that situation? Your Honor, our position is that all that was proven with respect to appellant on October 17, 2019, was that he was present in a car with other co-conspirators. He was present at the scene of criminal activity. With a gun? With a gun that was not, that was not connected to anything. All right. Thanks. Mr. Koch. Good afternoon, Your Honors. William Koch, Jr. for Trevon Wright. Mr. Wright's appealing the conviction, not of the RICO conspiracy, but of being convicted of the murder of Myrie Kenyon, which was a special sentencing factor in this indictment. We think he should get a new trial based on a combination of five reasons. They're set forth on page 12 of my brief. I'm not going to go through, through them. As you consider this, I would submit to the court, in our view, there's a real, after this trial, there's a real question of whether Mr. Wright is guilty of killing Myrie Kenyon. He was 19, 20 years old at the time all this was happening. If his cell phone, if he had possession of his cell phone on the date in question, he would not, it would have been impossible for him to have committed this murder. The murder happened at 535-37 on January 26th of 2020. His cell phone was on Cowell Street in Bridgeport at that time. He's a 19, 20 year old. If he had his cell phone, he would have been miles away from where this murder occurred. We submitted significant, a significant alibi defense. It was based on two things. Timing, the timing showed that he was on Cowell Street and wasn't at the site. And we had an alibi witness. So I'd say that as you think about this case, there's a real question of whether he actually did this murder. But we would have to conclude the jury could not credit Mr. Dangerfield's testimony, right? In order to agree with you, you would have to say he's incredible as a matter of law. The jury could not credit Mr. Dangerfield because he said your client admitted to the murder, right? He said, yeah, right. You'd have to discredit that fact. So what would be the basis for doing that? I know you have an issue. You're arguing that the timing, it couldn't have happened, the admission couldn't happen in the timeframe he alleged, but that's usually not a basis. People can get the timeframe wrong and still be telling the truth, right? They could be, sure. Yes, I agree. Well, the one thing about Kyra and Dangerfield, I believe that was, I wasn't going to really argue this, but I believe to my brief, the government knowingly failed to correct material false testimony of Kyra and Dangerfield at trial. So he testified falsely at trial. And then they played a recording of the very conversation that he had testified about, which gave the true version of the recording. Now, I'm sure I would think it would have been better for the government to expressly note that they're relying on the recording and not on what he said. But it's a little hard to say they didn't correct it. It's not like they suppressed the recording. They played the recording for the jury that revealed the true facts of what Mr. Dangerfield had learned in that conversation. Isn't that right? Yes. The fact is that there was no admission by my client on the wire. Right. Yeah. Right. That's the thing that, and it would have been there if Dangerfield had testified. If Dangerfield's testimony was correct, then you would have heard that on the tape. Right. But it's not there on the tape. Right. That's how we know that his testimony is inaccurate. Right. And that's, this was the answer, the other question, why wouldn't you believe Dangerfield? That's why, because. Well, you know, of course, no one's asking us, I think, at this point to believe Dangerfield as to when he was told something by your client. He wasn't, not by your client, it's by the other guy, right? This is a conversation with the driver, Warren, I think his name is. I'm not the victim, Warren, but another Warren. Yeah, no, you're right. You're right, Judge. And actually, Trevon Wright was with those guys that day when Dangerfield was wearing the wire. Yeah. So he had every chance to get Wright to admit to it, but he didn't. Can I just ask a question about one other thing with the presider's indulgence? You're arguing that you yourself were ineffective in not seeking an alibi instruction, right? I had to, we had a whole proceeding, so I actually had to withdraw that claim. So I think it's effectively withdrawn. Oh, wait, so you're withdrawing the claim of ineffectiveness? Oh, okay. I did, yeah. Okay, so that's no longer in the case. Sorry? That's no longer in the case. It may or may not come up on a 2055. I don't know about that. I'm just saying on this appeal, that is no longer an argument. Right. The ineffective assistance is no longer an argument. If Mr. Wright wants to, if we lose the appeal, if he wants to claim it, he can claim it. I'll testify to it. Okay. I get that. That makes my life simpler. Thank you. Thanks. All right, thank you. Okay. All right, I'm done, huh? Yeah. Thanks. I mean, we have the papers. We know the arguments. Okay, Mr. Schoenhorn? May it please the Court? My name is John Schoenhorn, representing Mr. Hayes. In first-year law school, criminal 101, elements of the offense, you learn that one of the things you have to prove is the identity of the accused. I submit that this is one of those few cases in the entire nation where the government forgot to do that. The suggestion that because I introduced myself to two witnesses as the lawyer for Mr. Hayes cannot play a role in this decision. Oh, even if it does, I mean, it doesn't hurt, right? Because you are saying I introduced myself as the lawyer for that man, Mr. Hayes. Well, I didn't point to Mr. Hayes. I know. Right. But the point is you're contending that although many witnesses talked about Hayes, it could be a different Eric Hayes than the one who was in the courtroom. Well, a different person, not necessarily a different Eric Hayes. No, excuse me. There is testimony that Eric Hayes is the guy who did this. Right, right. And Eric, your client, is identified by the court and introduced to the jury as Eric Hayes. You never said or contended this man here is not named Eric Hayes. He is named Fred Jones. With all due respect, the two witnesses I introduced myself were only involved in the matter for which Mr. Hayes was acquitted, that is, the murder of Jarrell Catewood. So arguably it doesn't count. And second, the judge told the jury to not use the attorney's statements or arguments or anything he said as evidence. So by admonishing the jury not to consider it, it can't be considered. That's my argument. I understand Your Honor's point. Oh, I'm sorry. Maybe I don't even understand your argument. I thought your argument was that no one ever said from the witness stand that the man sitting at the counsel table is the person I'm talking about when I refer to Eric Hayes. No, it's the person who committed the crimes that were alleged in the indictment. That's what I'm saying. It's different. There was clearly a person wearing a mask, it was during COVID, named Eric Hayes. When the witnesses are referring to Mr. Hayes during the testimony, why couldn't the jury, if someone was identified as Mr. Hayes in the courtroom and they refer to Mr. Hayes, why can't the jury infer that they're talking about the person sitting in front of them? Nobody identified him. I know, but first of all, the government points out there were photos of your client and videos that were identified by the agent, the cooperator Dangerfield, Detective Armstead. So if you want to get technical about it, they could identify him from the photographs, right? I understand. In my remaining minute, I want to discuss – Judge Lynch taught me that because he was my first year criminal law professor in Columbia. I want to discuss the sentencing issue, which I think is paramount in this matter. I believe that the court, partially because of the erroneous argument by the government, ignored Salinas and basically what I call fuzzy math. Mr. Hayes was charged with three overt acts. He was acquitted of one, and so the government argued and the court found that because there were only two acts left, then the jury necessarily had to find that Mr. Hayes conspired with Trayvon. There's two Trayvons, so it's Trayvon Wright to shoot at. I thought that on page 553, 1920, the district court, before the government introduced, who I think you're correct, was – they erroneously suggested that the jury necessarily found that that murder had been committed. But the judge before that said that he concluded by preponderance of the evidence that Hayes was involved in the shooting as an accomplice. So why isn't that a sufficient finding based upon the trial evidence? The judge sat through the trial evidence and said based on the record that it had heard, it made a finding by preponderance of the evidence, and then it wrongly suggested that the government's additional argument was also aground, which it is not. But it's not like it made no finding, right? He made a finding. The jury necessarily had to find that. But, of course, in a case – No, he made a finding by preponderance of the evidence, which is the standard before. In other words, that's his finding. That's not saying the jury found it so I'm stuck with it, or the jury found it and it was reasonable that they found it. He's not referring to the jury at all in the language that Judge Bianco quoted, right? If I may just respond to that comment. My other argument, which I set forth at length, is that the simple statement by Dangerfield that Mr. Hayes admitted to him while they were sitting around smoking weed that he, quote, gave the drop, unquote, to Trey was not evidence that he knew that Mr. Hayes knew that that meant that Trey was going to go get a gun from Mr. Batchelor, hunt down Mr. Israel, and then shoot him, and then return the gun to Mr. Batchelor. That's the only evidence in this case that there was a conspiracy involving Mr. Hayes to shoot, to kill, or try to attempt to murder Marquis Israel. The only other thing in the case is 10 days later there was the testimony that Mr. Hayes threw a gun when he was being chased, threw it onto the roof of a building, but the fact that he had this weapon which was consistent with the weapon that was used in the shooting, 10 days later, I submit, is not evidence of a conspiracy, particularly in light of the fact that in the indictment they alleged sharing guns, storing guns, using each other's guns. All right. Thank you, Mr. Schoen. Thank you. All right. We'll hear from Mr. Koch III. Yes. Good afternoon, Your Honors. May it please the Court. I am William Theodore Koch III for Trayvon Jones. I would like to focus on a question that Judge Lynch asked Mr. Pugh sort of right at the beginning, which is about the case of Wong. In order to ratify, do you need to commit a new overt act? I think the answer is no. But do you need to commit a new crime? I think the answer should be yes. Wong doesn't specify, and none of the cases that come after Wong specify. And the reason why you should require the government to prove that a defendant committed a new crime after he turned 18 to ratify a conspiracy is because that's the only way that a person will have notice of what they have to do to ratify their membership in the conspiracy, and it's the only way that the law cannot be too vague. But Mr. Jones, while in prison, talks about in jail, I guess, technically, right, after being arrested, after he's 18, commits various assaults against members of rival gangs in the jail. He verbally voices his loyalty to the gang on telephone conversations that are recorded while he's in that jail. Yes? That's what the evidence shows. It does. Why does not that admit to his continued membership in the conspiracy, and indeed, his continuing to commit crimes by attacking members of rival gangs on behalf of that gang? The problem with the phone conversations for the government is he's not talking to any of the gang members. So what? There has to be an agreement. That doesn't show any agreement. That shows personal… It's a preexisting agreement. The question is whether he's abandoning the agreement or whether he's continuing to adhere to it. I don't think… And by his own, out of his own mouth, he says, I'm continuing to adhere to the agreement. I don't think… Whoever he says it to, whether he says it to a girlfriend, whether he says it to a police officer in an interrogation, he's saying, I continue to be part of this organization. And then he acts. It's not just Bragadocio, evidently, at least the jury could so find. He acts on that loyalty by, in jail, continuing to attack the same people that he's accused of attacking on the streets outside of jail, the same type of people. Why isn't that even committing crimes there? Your Honor, it's not a question of abandonment. It's a question of ratification. It's a question of… No, no, no, no, no. Ratification, I hate that word, and I think it's pure dictum. It's trivializing. It's turning this into a contract case. And indeed, if it were ratification, it would have wholly different consequences, right? If you ratify a contract after you're 18, you're still bound by the contract. That's not what this is about. This is about, is this offense an offense that continues past his 18th birthday? That's what it's about. That's what this ratification metaphor is actually speaking of. So the question is, is he in or is he out? Now, the one thing that we have not decided in that Geraldo case is we said, well, if this were adults and we were talking about the statute of limitations, then the law is clear that he has to affirmatively renounce. He continues in the conspiracy until either its objectives are defeated or he does something affirmative. And we said, well, that's a little tough when you're talking about people who are 18. We're not deciding that. We didn't decide the opposite, but we're not deciding that. But if a person continues to adhere to the agreement and act according to the agreement, why does that not demonstrate that the crime that he's accused of and that the jury found him guilty of is a conspiracy that began back on the streets and continues past his 18th birthday? What's the argument? Because it's all in his own head, Judge. He was at Wyatt without anybody who was his friend, and he was put into a situation where there were two people who were friends with each other and they were not friendly to Mr. Jones. So he did what he had to do to get out of that situation. I know my time's up. I want to answer another question that I didn't get to answer of yours about the crime. Because if you cannot – so assault is what we've been talking about when we use a trial, sort of like the garden variety, ordinary English language use of the word assault. Yeah, he assaulted somebody. He threw a chair at the guy. But we need to know what that crime is. Is it a breach of peace, disorderly conduct, assault third? It happened in Rhode Island. Is it Rhode Island law? Without that, the law is just unworkably vague. That's the argument. Okay. Understood. Thank you. Thank you. All right. We have from the government, Levick. Thank you, Your Honors. May it please the Court. Stephanie Levick on behalf of the United States of America. The Court should affirm judgment on all four defendants and the sentence for haze because each of the claims raised in the consolidated appeal alone or together lack merit. Starting first with the issue of jurisdiction, I think there's an agreement, at least as it seems, that the law in this circuit and other circuits is that defendants who began conspiracy as juveniles can be criminally liable if they – to use the word that Judge Lynch doesn't like – ratify their membership. Why doesn't the government like better the term continues to participate in the conspiracy rather than ratify? I don't dislike that phrasing of it. I actually quite like it. Okay, fine. That's good. Because I would argue that here the – the government agrees that, as Judge Lynch pointed out, not – failing to renounce the gang or failing to withdraw as that's understood in a general conspiracy case would not be sufficient to convict someone as an adult. Your government agrees with that, right? Yes. I think the case law is clear that something more than nothing has to be done. Something to show continued participation has to be shown, right? Correct. And it has to be – I know there's one case that – some of you already mentioned preponderance of the evidence, but it has to be a jury finding beyond a reasonable doubt. The government agrees with that? I wouldn't actually agree that it has to be a jury finding beyond a reasonable doubt. In this case, the jury did find beyond a reasonable doubt and – Judge Lynch pointed out for purposes like a motion to dismiss, maybe just alleging an indictment is enough. But you're going to convict someone as an adult and a judge can make that finding is your suggestion? What other area of – give me an analogy where that would be the case. Well, I guess just taking it back to the elements of the offense. The offense here was a racketeering conspiracy. And I think the circuits have made clear that the JDA does not impose additional substantive elements onto a criminal offense simply because the defendant began the offense as a juvenile. But the offense has to continue past his 18th birthday, right? Correct, in order to take it out. That is the element that we're talking about. That's the element we're talking about. And the jury has to – does the jury not have to find beyond a reasonable doubt that his participation – or in the case of a guilty plea would be a different thing. But if it goes to trial, the jury has to find beyond a reasonable doubt that the conspiracy continued beyond his 18th – he continued to participate in the conspiracy beyond his 18th birthday, wouldn't it? I don't think that this court has indicated that a jury – Well, maybe we should, but I'm asking you what the law is. Why isn't the law, if you think it isn't, that the jury has to find beyond a reasonable doubt that the defendant committed the crime charged in the indictment, which is not an act of juvenile delinquency that occurred when he was 17, but is conspired for a period beginning on date whenever – birth, I don't know, whatever – and continuing past his 18th birthday. That's what the indictment charges. And the indictment charges that it would not be sufficient to find that he committed that very crime or the acts that constitute that crime entirely wrapped up in a bow and completed before his 18th birthday, right? That wouldn't be enough. The jury has to find that the crime continued past his 18th birthday, don't they? I think that – yes, they have to find that the charged offense was committed and that the charged offense was one that was an adult offense. Is one that is an adult crime because it continues past his 18th birthday. Yes. And so that's what the jury has to find beyond a reasonable doubt, is that the crime of conspiracy that he was committing and participating in continued past his 18th birthday. I think that the jury could find that without having to be specifically charged as to the ratification. And I think there is some question still that remains in this circuit and, frankly, in the other circuits. Wasn't the jury instructed that they had to find that the crime continued past someone's 18th birthday? Yes, in this case – Here they were, so we're not worried about what the law would be or what would happen about does the judge have to instruct that specifically because here they were instructed specifically. That's correct. And the question is what is the standard of proof and isn't the standard of proof for what juries find when they find somebody guilty of a crime proof beyond a reasonable doubt? Yes, if the question here is whether this particular jury found beyond a reasonable doubt that these defendants ratified their participation in the ongoing conspiracy, the answer is yes. Yes. They found it beyond a reasonable doubt. We know that because they were instructed that they needed to find that and they returned a guilty verdict. Yes. And so the only question is was the evidence sufficient to permit them to find that in any given individual's case? Correct. That is our view at least. I just want to go back to one thing that you said. I don't want to – that was really clear, but I know this was not the case here, but your position is the judge isn't required to instruct the jury that there's this requirement? So in order to be guilty, you have to commit – you have to do something affirmative after your 18th birthday to indicate you're continuing to participate in the gang and yet the judge shouldn't instruct the jury that that's what they're required to find, some kind of secret requirement? I don't understand why there shouldn't be a requirement if that's what the law requires. If a judge didn't do that, I guess you could do a harmless error analysis, but the government's not suggesting that they shouldn't be instructed on this in the same way they would, for example, in a statute of limitations that they have to find some act within the last five years, right? I think the point that I was just simply trying to make is that it hasn't been made clear in this or other circuits that a jury instruction is required. There are some courts that have – You're defending positions that have no relationship to this case that the government doesn't need to prevail on in order to win this case. So why are we still having this conversation? We're having this conversation because you undertook to say that the judge doesn't need to have instructed them and that some – the judge could have found it by a preponderance of the evidence and all these things that have nothing to do with this case. I don't understand what – why the government wants to come and tell us those things that obviously are drawing a lot of fire when they're irrelevant. Sure. That may have been a misunderstanding of a question that was posed on my part. But here, as Your Honor has indicated, this is just a question of sufficiency. Okay. But what is – yeah, what is the issue is sufficiency of the evidence, and that does require us to decide something about what would have to be done. What is it exactly that would be sufficient evidence of participation in the conspiracy? So I think the law is clear that it – there is no requirement that to establish ratification that the individual commit a new predicate act or even a new crime. I think that is what the law says. The question is what does need to be shown. And here, with respect to Mr. Donald, as we – or as you had discussed earlier with his counsel, he was arrested in a – he was actually arrested in a stolen car with co-conspirators and a co-defendant, dropping them off at another second stolen car that had been used hours earlier in a shooting of a rival gang member. Now, what the jury had to find was an inference that Mr. Donald was continuing to participate in the conspiracy. Not that he had agreed to shoot at rival gang members that day, but that he was agreeing to participate in the ongoing conspiracy and pursue its general objectives. The racketeering conspiracy law is clear that defendants do not need to engage in the specific predicate act to be held criminally liable. And in this case, Mr. Jones – I'm sorry, Mr. Donald, I think the inference was – is that actually that he was a participant in the shooting, but the jury didn't even need to reach that in order to find that he ratified his participation. With respect to Mr. Jones, the jury saw and heard evidence about his attacks on rival gang members in prison. They saw video of it happening. If it wasn't clear enough from that record evidence, he himself stated on prison calls why he was committing those attacks. He was doing it for the enterprise. He – the jury also heard from a cooperator that explained that they had to continue to represent the gang in prison and that Mr. Jones had told him that he had attacked a rival gang member because he was repping the East End. And so I think it's reasonable for a jury to find that these two individuals ratified their participation in the ongoing conspiracy. Unless there are further questions on the issue of the Juvenile Delinquency Act, I would move on briefly just to address some of the issues. Can I ask you to address the – one of their arguments, a couple of the – I think two of the defendants made it, that it was unduly prejudicial for the government to bring in the five mothers and I think the girlfriend of the victims to testify. They talked somewhat about the loss of their loved one and then the evidence regarding desecration of the graves and the impact that that had on two of them. Can you address that? Yes, Your Honor. Here the court's ruling denying a new trial after the victim's testimony and admitting this testimony is entitled to great deference. And the court did not abuse its discretion in denying any motion for mistrial. The court engaged in a 403 analysis during trial when this was first raised. There wasn't any evidence. There wasn't like – there wasn't a cooperator who said we have a practice of desecrating the graves in connection with these gang wars. This is just testimony of victims that the inference was these guys are desecrating graves of people they killed, but there was no – there was no other evidence of that in the case. Should that have come in? They don't know that, right? I think that the evidence that was presented at trial was that there was a pattern of threatening and intimidating rival gang members through various means, whether it be on social media, through rap music videos, which were not actually shown to the jury but were somewhat discussed, whether it was on phone calls or in other manners. I think that the urination and desecration of rival gang members' graves was just another way of engaging in that modus operandi. Who urinated on the graves of these victims? I don't want to speak out of turn. I don't remember calling. According to the evidence in the record, the testimony that the government elicited was they, these kids, do that. Right. I don't think that the victims knew. And you have one mother of a victim of specifically Mr. Wright. The other was a victim of Mr. Jones, I think. Do I have that right? They're the ones who are making this argument. So you have the mother of a dead man who was murdered come on the stand and testify that the question asked by the government is, one of them is, where is your son buried? And the answer is he's not. We cremated him because they have a custom of desecrating graves, including urinating on the graves. What is the relevance of that testimony? The relevance of that testimony is to just illustrate the ongoing rivalry between the gang members and frankly, to to bring in the evidence that the murders of these victims' children was not a random act of violence, but rather a shooting that was done in furtherance. My son was a gang member who was engaged in a gang war with these other people. And they're the ones who killed him. And I know that they're the ones who killed him. And therefore, they're the ones who are going to urinate on his grave. No, because she doesn't know. And she's not presumably she's not offering up her son as a villain. Right. She's not saying that this is a gang war that her son was involved in. But she is talking about a, you know, now, granted, it's a little hard to say that anything would be so tremendously prejudicial because it makes defendants out to be worse than they are when what they what they are, according to the jury's verdict, is murderers. But still, desecrating graves is a little bit much, a little bit emotional, wouldn't you say? Well, I think I would. Isn't that what it adds to the case is to make you even more angry at these people? Not only did you bring on the mother and say, and say, there were questions like, when was the last time you saw your son? Oh, when he kissed me goodbye on his way out. And he was going to come back and we'd see him again. And now I'm never going to see him again. Which is, I guess, inherent in the act of murder, but it's playing with emotions. But then you come in and say, and besides that, his grave was vandalized by unknown people because these kids, these kids, but the clients sitting next to them in the courtroom do this. They do this. Miss Living, I did follow up on on the concerns of Judge Lynch. Could you describe how this came up in the course of the trial? The desecration? Yes. How did the evidence just give us a general description? I'm anxious to know whether there was a concern stated by defense counsel for whether or whether Judge Bolden had an opportunity to consider these concerns. The issue of the victim's testimony did arise in the course of trial when defendants sought a mistrial on the grounds of their testimony, including the desecration of the graves. At that time, the judge found that the impact was quite minimal. Any potential for prejudice was very minimal, given that it was approximately 30 minutes of testimony across all the victims or the victim's families in what was a five-week trial. And so the prejudice, to the extent there was any, was also further cured by Judge Bolden's jury instructions, which instructed the jury not to rely on any sense of empathy or emotions with respect to determining their verdict. And were those instructions directed to this particular concern or a general instruction? They were a general instruction, but the court did indicate that it was going to emphasize that point in the midst of trial, but when this issue was raised by the defendants. And I think, to be fair also, didn't he offer to give the instruction then, and the defense understandably said, maybe the thing we don't want to hear right now is another recitation of pay no attention to people. I keep wanting to use a different word because a different word was used at the trial. Pay no attention to the fact that somebody urinated on the grave. Don't get all emotional about that. Correct. They didn't want to draw further attention to the testimony. But the judge said, in reference to that very thing, that he was going to give that instruction and the general instructions. That's right. That's right. All right. Thank you. Unless the court has further questions, I see my time has lapsed, so the government would rest on its papers. Let me just say, I mean, there is, of course, an argument here about whether that testimony was so prejudicial that it should require a new trial. But I think there's also a question of, is the government going to do this in every one of these trials? Are we going to hear mothers testifying about grave desecrations that there is no evidence the defendants on trial participated in? Is this something that you think and your office thinks is appropriate testimony, as opposed to harmless error cured by the jury's instructions, et cetera? Well, I can't purport to speak on behalf of my office in terms of what the policy is in every trial with evidence of this nature. Well, maybe you'll want to take that concern back. Certainly, we will be mindful of that. It's not just this particular fact pattern. Whenever you're calling the victims and the family of the murder victims at all, to the extent it's necessary, usually those facts, whatever facts they're adding, usually can be proved through other evidence besides the victim's mother or father. The government should be very careful about doing that. And if they do need to be called for some reason, it's obvious to be very circumscribed without throwing any questions about when's the last time you saw your son or things like that. You know, because that obviously has nothing to do with the elements of the crime. It really is just for emotion. All right. Thank you, Your Honor. All right. All right, Mr. Pugh, you have one minute in rebuttal. Your Honor, I realize I may be facing an uphill battle with this, but I do want to note that the quantum of evidence on ratification as to Mr. Donald is different. It's unique and it's different from every other case in which the court has considered this issue. It's cabined really entirely to a period of minutes on October 17th, 2019. Now, I heard the government say that it believes there's a permissible inference that Mr. Donald was involved in the shooting earlier that day. Respectfully, to the extent the jury made that inference, I don't think it's permissible based on the record. He was not captured on video surveillance of the car leaving the scene. He's not captured in hours of audio from inside that car after it was stolen. He's not on a Facebook Live video. You don't need to establish that in order to satisfy this requirement. It doesn't have to be that he was necessarily involved in the shooting. All they'd have to find, a rational jury drawing all inference in the government's favor that by his presence there with a gun in the stolen car with the other gang members, including the shooter, was showing his continuing support for the gang. That's all the jury would have to find. I understand my time's up. If I may briefly respond. The way that the court instructed the jury was that it had to find something affirmative beyond a reasonable doubt. And our position is the only thing that's affirmative here, proven beyond a reasonable doubt, is that he's sitting in a car with a firearm with co-conspirators. All right. Thank you, Your Honor. Since the government briefly mentioned the introduction of rap lyrics, I just want to briefly address. The only case that this Court has addressed that issue was the Carpenter case. I want to ask the Court to look into whether or not there should be a more comprehensive analysis. When it came to the introduction in this case to allow the case agent to testify to what he thought was, quote, relevant. Well, wait, wait. That question was crafted because you won from the judge an exclusion of almost everything. And the question was crafted in order to signify. It's a little. This is not all known to the jury, of course. But the that was an introduction that's telling him just talk about the thing that the judge said was relevant. And as opposed to all the other things that we're not going to hear in firsthand. And the whole reason that the agent is there testifying to these lyrics is because you were objecting to having the actual video of him performing the rap. Right. Absolutely. Yeah. But the judge already ruled the video couldn't come in. But even the lyrics had nothing to do with the case. It was collateral. It was argued by the government that it should come in to bolster the jailhouse informants testimony about a 404B. Let me let me take that back. A prior bad act that was not even listed as a 404B involving another witness who allegedly was shot at that had nothing to do with this case. So I'm suggesting that this whole idea of the government putting in lyrics, vague lyrics about things that have nothing to do with the lyrics. Isn't it isn't the lyric we're talking about the one about shot him because you're his son? Yes. And isn't that a murder that was being presented as being another one of these? The son was someone who was an opponent, putatively, of the gang. This is the Gaines shooting. Yes. Was not one of the actions alleged in this indictment. Nor was it disclosed as a 404B prior bad act. It wouldn't be a prior bad act. It would be evidence of the conspiracy that happens in all these mob cases and all these gang cases. As a as a RICO case, you have to prove the existence of the government has proved the existence of the enterprise. And it does that in part by showing all the bad things that the enterprise members did that are connected to the crime. So it's neither a prior bad act, nor is it necessarily a predicate act that doesn't make it. And I don't think you argued, at least to us, that this lyric was irrelevant. It's a question of its or its relevance that was objected to has to do with the fact that it is an artistic statement that is no more probative than Michael Jackson singing a song that says I'm bad. That was the argument. Right. Not the argument was not. Or that the title was I'm so evil. Right. Exactly. Exactly. Those things are not that's generic and so on and so on. But the lyric is very specific. It says if you had someone, if you had Johnny Cash on trial and there was someone who said, I watched him shoot a guy in Reno and I asked him why he didn't. He said just to watch him die. And then they put in the song lyric to corroborate that. This is more like that, isn't it? Then it's like just you have a song where you say you're a terrible, evil guy because you are enacting the persona of someone. And I just respond briefly to the extent that this came in only because Atkins, the jailhouse informant who knew nothing about this group, he was in a jail up in Cheshire, had nothing to do with any of these defendants, claimed that my client in a conversation mentioned that he was involved in some other shooting, which was the only evidence about it in this case. And then they claim that this song is about that is why putting in these lyrics is so difficult and prejudicial. All right. Thank you. Thanks to everyone. We appreciate it. We'll reserve decision. Have a good rest of the afternoon."
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"stt_transcript": "Good afternoon, Mr. Haas. Good afternoon, Judge. Your colleagues are wondering why they only got three minutes each and you got ten. I know. I was going to barter some off the hallway here. Only because of the way it was calendared. It was my fault. But you do have ten minutes. That's fine. I don't know if I'm going to use all of them. I didn't have a big, long trial like they did. But I had some overlap and some issues. But since this musical analogy is coming up, I think I should start off with Hotel California. You can check out any time you want, but you can never leave. Anyway, good afternoon, Your Honors and counsel to the government, Stephanie. It's a I have Tyrone Moore who resolves his case by way of a plea as opposed to take his case to trial. And the question to draw a net around my argument is the nuanced question is how can a guy, a youth that's in a juvenile detention facility some 40 miles, 35, 40 miles away from the gang's territory, which is in Bridgeport. Actually, it's about 30 miles from Bridgeport, probably from their east end location, probably closer to 40. Can he have this conduct, which is basically telephone calls, to bring him into a continuing conspiracy where his one predicate act, I know that under a racketeering conspiracy you don't need predicate acts, but the one act of criminal conduct that he did was a murder when he was 17 years old. But didn't he? I mean, you know, the I think the strongest standard that has been urged for the standard of proof of continued participation is proof finding by a jury beyond a reasonable doubt or the equivalent, which is a guilty plea. He admitted under oath during his allocution that he continued to participate in the gang after his 18th birthday, didn't he? Well, yes, but a guilty plea can't really step around a claim of lack of jurisdiction. Well, no, no, no. But the jurisdiction is supplied by the fact that the indictment itself charges a crime that was committed over a period of time continuing until his past his 18th birthday. And it's well-established law in every other context that an indictment that charges an actual federal crime is sufficient to give the court jurisdiction to decide whether that crime happened or not. Now, Mr. Moore comes into court and acknowledges that he is guilty of that crime. He says he did this, and then it turns out there is independent corroboration. It's not just somebody coming in and saying, you know, I kidnapped the Lindbergh baby, or I assassinated JFK, and say, well, that's not good enough. He pled guilty to it. There's telephone calls from the jail in which he celebrates murders committed by rival gang members and says that while he knows he did, who did one murder, he's not going to say anything about it because his calls are being recorded. So he's admitting that he's going to cover up the crimes on behalf of, committed by other members of the He's glad when they commit further crimes. He's done things, independent of his admission, that show that he continues to be a member of the criminal organization. Well, he may continue to have a criminal mind. He may be in jail saying that he's living his life vicariously through them who are out there committing crimes. He may be discussing, he may be boasting, he may be congratulating, but he's not doing steps in furtherance of this continuing crime of racketeering conspiracy. It's important to look at the timelines. The chronology is July 12, 2019 was that murder he was involved in. Clearly that's part of the racketeering conspiracy, and that's when he was 17. On October 4, 2019, he before his 18th birthday. On December 2, 2019, while still in custody, he turns 18, and he's still at Cheshire Youth Facility. On December 8 to 9, there were some recording, recorded calls. But in the recorded calls, he doesn't, we've already established, it doesn't have to be a predicate act. It doesn't have to be a crime. All it has to indicate is his continuing participation in this conspiracy. And he says in the call that when he gets out of jail, he gets home from custody, he's, you know, again, construing this conspiracy with the government. He's going to sell drugs. He's going to, if he feels threatened, he's going to have to pop out. He's indicating, I'm going to continue the activities that I was doing before I got it. He wasn't even indicted then. It wasn't until, it wasn't even until May 6, 2021. What does it matter? This is a couple years after he's closed. It doesn't matter whether he's indicted. It just matters that after he's 18 and he's in jail, he's saying, I'm going to continue to do these things. But the statement of intention is speculative when he gets out. He's in jail for a period of time. Wait, wait, wait. No, no, no. The whole crime is conspiracy. In other words, if you had an adult, or any ordinary reactor-tearing conspiracy, it would be the crime, although it would be rare if the government ever knew about this, if we, all of us, three of us, the two of us and yourself, sit around a table and say, let's create a gang. It'll be sort of like a mafia family. And here's what we're going to do. Here's the plans. We're going to rob banks. We're going to murder people. We're going to deal drugs. If there was a tape recording of that conversation, we would be guilty. We could be proved guilty of RICO conspiracy. The crime is agreeing to do these things. He agreed to do these things when he was young. And then when he's putatively old enough to know better, he continues to say, and I'm still in. I still am a member of that conspiracy. But you have to do something. You have to do some criminal activity to be part of it. For adults, the rule is actually much stronger than that. You have to actually do something affirmative to renounce your membership in the conspiracy. But he was he was incapacitated in the juvenile jail. He wasn't beating people up and supporting the gang anymore. We just we just heard in the last argument that being in the jail doesn't incapacitate you from committing crimes while you're in jail. It doesn't incapacitate you from continuing to adhere to a group and announce that going forward, you are still a participant in the conspiracy. I just don't get it. What is it that makes him incapacitated from being a gang member when he's just because he's in jail? Well, he's in jail. He's not able to do anything and he doesn't do anything other than talking. He may be congratulating a friend. He could he could be congratulating the person who killed Charlie. He could do anything. He chose to go to trial and argue that to the jury. Maybe he'd get acquitted, but he didn't go to trial and argue that. Instead, he came in and admitted under oath in court that he continued to participate in the conspiracy after he was 18. We're just talking about the corroborative evidence that would support a judge in saying there's a factual basis for what he's saying. There's an evidentiary basis for what he's saying. Independent of justice is admission. But there's some there's some affirmative ratification that he has to participate in. I mean, there's nothing affirmative that he did other than other than talk other than saying, yeah. If we're going to play the game of ratification and compare contracts, if someone after his 18th birthday says, I, you know, I made this contract when I was a minor, but I still adhere to it and I'm going to pay you. That would be enough to be ratification, wouldn't it? In a contract contract terms. But this isn't a contract. No, it isn't. This is a case where if we weren't talking about minors, he has to do it. Actually, the minors, he would have either the whole conspiracy would have to have been broken up. And if you had a conspiracy to assassinate the president or something like that, and all the members of the conspiracy get arrested and the plot is frustrated, then that would be the end of the conspiracy. But if the conspiracy is to continue to operate La Cosa Nostra for the rest of your life and that's what the agreement is, and to keep committing all these crimes, the fact that one member goes to jail doesn't mean he's out of it. He has to do something affirmative to renounce it. Now, the rule with juveniles, understandably, is a little different than that. You have to do something affirmative to get out. But when you affirmatively announce your adherence, when you plead guilty, you don't ask the jury to find beyond a reasonable doubt and make the arguments that you're now making. But you plead guilty to having participated after your 18th birthday. I'm having a little trouble figuring out what what we're missing here. But he didn't he didn't do anything other than talk about. He didn't commit and congratulate other people's criminal activity. So the argument is he did not commit a further overt act in furtherance of the conspiracy. Correct. Overt acts aren't required for a racketeering conspiracy. He didn't he didn't do any more racketeering or he didn't do any more racketeering conspiracy after he was locked up. And this indictment came down a couple of years after he, you know, a couple of years later. The preceding indictment was returned May 6th, 2021. These recorded calls were a couple of days after his his 18th birthday, which was on December 2nd, 2019. They pick him up on a line December 8th to 9th, claim that he's he's hiding the identity of somebody on a recorded phone call. He's not talking to the cops. He's not doing anything to advance the conspiracy. He's just he's just participating in in criminal thoughts. He's not he's not doing anything to advance the overall conspiracy. And I should know the answer to this simple question. Did he move to withdraw his plea in the district court? No, he didn't. OK, thanks. I think my time is up. Kelsey. Thank you, Your Honor. May it please the court. Once again, Stephanie Levick for the United States of America. I think we've all agreed that no predicate crime or no additional crime is required to ratify or confirm that a juvenile has continued his participation in an ongoing conspiracy as an adult. Here, I think, again, perhaps the issue is whether the prison calls were sufficient to establish that that threshold showing of ratification. And it is our obviously our view that they do. Who is he talking to in these calls, by the way? In some of the calls, they're unidentified persons that are not involved in the conspiracy. In one of the calls, however, with one of the a woman, he asks that woman to patch in Trayvon Trayvon Wright, who was a co-defendant, ultimately a co-defendant, indicted in the same superseding indictment. And what does he say when Wright is on the line? He says, I believe he said, I believe Wright says something along the lines of I'm smoking or I'm getting high. And Mr. Moore responds, did you get a new pack or or it might have been in the reverse. But it was they discussed the concept of getting high and smoking. And that was a theme throughout the trial. And it's set forth in the PSR that gang members refer to shooting opposition or they celebrated the shooting of opposition gang members by saying they were getting a new pack because they were, quote unquote, smoking on the opposition. And so that communication was actually with a co-conspirator. And in our view, that was in and of itself a reaffirmation of his continued membership in the ongoing conspiracy, or at least that is an inference that could be drawn. And I think one thing to just point out is that not only did he plead to being a member of the ongoing conspiracy as an adult, to the extent that there was any question about what he was pleading to, it was addressed at sentencing and in the PSR. Before you get to the PSR, because I did want to highlight, I understand there's no motion to withdraw the guilty plea, but at the guilty plea itself, other than him understanding he's pleading guilty to a charge of him participating up to the date of the indictment, there was really no discussion of any post-18 years of age conduct. He didn't allocute to anything. He didn't say after I was 18, I continued to participate. The government, when it summarized its proof, didn't even focus on that. It seemed to have been totally bypassed. You know, he wasn't informed that that was an element, that was part of the element. So in a guilty plea situation, isn't it a better practice for the defendant, rather than rely on just the broad range of the indictment that goes beyond his 18th birthday and then argue from the PSR that there's a factual basis for the plea to have it covered in the allocution by the defendant and nor by the government? I would agree with Your Honor's point that that would have been a better practice. However, that is not, I mean, I would just note that the elements of the crime that he was admitting to were set forth in the plea agreement and advised to the defendant at the time of the plea hearing, but the elements were the elements that were required to establish criminal liability for a racketeering conspiracy. But what I was trying to argue earlier was that the PSR not only reaffirmed Mr. Moore's stipulation to the offense conduct or his stipulation that he was a member of the conspiracy up through 2021, but it clarified what inferences should be drawn from the fact of the prison calls. The prison calls were described in the PSR in paragraphs 16 to 20, and the PSR specifically says that the prison calls and other evidence developed during the investigation, including cooperator testimony, show how he ratified his involvement. And at no point did Mr. Moore seek to withdraw his plea or, and at no point did he object to the facts stated in the PSR, which the court then adopted as its findings of fact. And I guess I would just throw in the written plea agreement did stipulate that he was a member or associate of the gang from January 2017 until the date of the superseding indictment. So well, well past his 18th birthday. Correct, because it was in May of 2021. Yes. And just to address some of the arguments that defense counsel made, again, there is no need to establish that Mr. Moore engaged in criminal conduct or really any specific conduct in the, in the, when we think of conduct as actionable behavior. When looking at the ratification doctrine from the, in the contractual context, as your honor had previously alluded to, ratification can be found either through the conduct or words, evincing an intent to remain bound by an agreement. Here, Mr. Moore's words clearly evinced his intent to stay within the group, the East End Enterprise. I think the fact that the indictment was not returned until a year or more after he was incarcerated actually supports the inference that he was intending to return to the streets and continuous participation in the gang and pop out on the off, as he said, on a person call. At that time, he had been arrested and charged with a simple felon, or not felon in possession, but an unlawful gun possession charge, which in his view, he could have been released at any point. He was not, well, this is an assumption, I suppose, but it could be inferred that he was not under a belief that he was going to be in prison for years and years on end. I think it's reasonable to infer that he believed that he could actually return to the streets and re-engage with his co-conspirators. Each of the prison calls, as I indicated earlier, supported an inference that he was still engaged with the members of the conspiracy and was supporting and pursuing the same goals. Obviously, he was constrained by the walls of a prison and was not able to do certain types of activities that the other members of the conspiracy were engaging in, but he was certainly celebrating their violence, encouraging their violence, taunting rival gang members by calling them lucky when they successfully killed a member of his gang, and then indicating his plan to return to the streets and immediately engage. So unless the court has any further questions on this issue of ratification, the government would rest on its papers and ask the court to affirm. Thank you, Your Honor. Yeah, just circling back to the affirmative volitional ratification, the single phone call six days after his 18th birthday while he's incarcerated, he spoke to a co-conspirator using coded language, shouldn't strip him of his juvenile delinquency act. The government interpreted smoking as a coded celebration of murder, but it's a contested factual inference. These mere associations with these undertakings certainly aren't enough to bring him back into a conspiracy, which he was far separated from being in a juvenile detention facility with no concerns about his still working against other opposition members or things like that. In terms of the PSR, the general statement that membership continued through the indictment is a conclusion, not proof of a post-18 agreement. The calls show discussion, they show boasting, they show concealment, or future intent at most. They don't show a present step to conduct and advance the enterprise's activities. I think that there is something lacking here. It may require a remand under Geraldo to see if these acts do support continuing activity post-18. But there's a very thin line of conduct that I don't think that the government can satisfy that we've drawn here in terms of his continuing activity post-18. Just a couple of phone calls right at the time of his 18th birthday, a couple years after the conspiracy. Does that answer any other questions? I'll rest on that and my brief. Thank you. Thank you so much. We will reserve decision and have a good day. Thank you."
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"stt_transcript": "Will the clerk please call the case? 125-1986-WC Jason Bowden, appellant by Brian McManus Jr. v. Illinois Workers' Compensation Commission, et al., Wilbur Wright College, Appalachia, by Elizabeth Coppolati. Thank you. Counsel McManus, you may proceed. Judge, and your honors, can I reserve five minutes for my rebuttal? No, you don't have to. We'll give it to you. Thanks, Judge. I've been in front of, I've been practicing workers' compensation law for 33 years now, and I've been in front of your honors a handful of times. I never thought I'd be in front of you on this case. One of the reasons being is there are a lot of facts in this case that everybody can agree to. One of the facts is Jason Bowden was hired as a janitor by the in 2011, and that he had an uneventful work history up until what we're here for today at Barr. I also believe that we can all agree that Mr. Bowden did not have any comorbidities by way of prior low back injuries, obesity, any type of medical condition that would give rise or lead to the conclusion that Mr. Bowden suffered from any type of low back injury or disc derangement until his job as a janitor for the respondent. There also is an undisputed fact that Mr. Bowden's primary care physician, Dr. Sundararajan, is an HMO primary care doctor that deals with the janitorial service and janitors routinely. She understands what janitors do. She understands the mechanisms of their work. She understands their daily job duties. She is very astute when it comes to what a janitor has to do on a daily basis. Also, I think we can also, it's also undisputed that the neurosurgeon in this case is also very qualified and very talented. Both of the doctors I just mentioned both related Mr. Bowden's work injury or Mr. Bowden's injury to his repetitive work duties. So I guess that turns to why we are here. Well, we're here I think because of the confusion with respect to the manifestation date. And I state to your honors that there really is no confusion with respect to the manifestation date because the arbitrator in this case did not find that there wasn't a proper manifestation date. What the arbitrator found was that there was too many manifestation dates for her to pick a correct manifestation date. And I believe this is exactly what the Supreme Court has dealt with in the past and what this district has dealt with in the past where there are a lot of this gentleman had two or three mentions of two or three prior low back visits to doctors before the straw that broke the camel's back, namely his August of 2021 visit with Dr. Sundaransan. But the Supreme Court recognizes that and the Supreme Court recognizes that and they routinely say that the person that shouldn't be prejudiced in a proceeding like this is a petitioner that is just trying to do his job and just trying to get through his daily job, which Mr. Bowden was trying to do. He was working. He was working during COVID. The schools were empty during the time period that he was working and he was doing quite frankly, a lot of twisting, a lot of lifting, a lot of mopping, a lot of activities that the two treating doctors said would be the very thing that would give rise to his low back complaints. And it wasn't until August of 2000, August 21 of 2021 when he sees Dr. Sundaransan, August 20th, I'm sorry, August 20th where Dr. Sundaransan says, you're off work, your work-related duties are causing the need for your temporary total disability and that we need to work you up to see if surgery is indicated. Now, this is the first time that Mr. Bowden, who's a janitor with a similar education, is sat down by his medical provider and told immediately, this is what I think it is. This is what I think's causing it, Jason, and this is what we need to do. And what does Mr. Bowden do? Mr. Bowden takes that note and immediately informs his employer about it, goes to his supervisor, tells the supervisor of his job duties and his supervisor documents, Supervisor Morales documents in a report on August 24th what Mr. Bowden does and what Mr. Bowden learned from his doctor, what his doctor believed the cause was for his current low back condition. And that is the very essence of your repetitive trauma cases that you build a foundation and this gentleman's foundation is his low back and he's injuring it and then the foundation comes out from under him on August 20th and he's taken off of work and he begins care and treatment in earnest. How that wasn't a proper manifestation date or how the arbitrator did not find that to be a proper manifestation date or, quite frankly, any of the other manifestation dates that the arbitrator mentions in the decision, those all would have been satisfactory manifestation dates as well. I happen to think that the date of last exposure and the date that he truly learns of his condition and what caused it was the proper manifestation date and I stand before the panel imploring that. So I don't know how a manifestation date wasn't found for August 20th of 2021, but like I said, the decision is kind of void. The arbitrator kind of absolves herself of the responsibility to make a manifestation date finding. The arbitrator then goes on to tackle, once a petitioner is able to prove manifestation date, as I believe that this petitioner could, he has to prove the notice requirement which I believe that he did and also with respect to the notice requirement under the act, this is a case where respondent paid all of his medical through 8J. 8J is a particular provision of the statute where a work-related injury is being paid for by a group plan that's wholly or partially paid for by the respondent, which it was. The respondent acknowledged it and the respondent wanted credit for the 8J payments that they made if the court were to find out that this was a work-related condition. I don't believe that the respondent even argues prejudice at all with respect to notice. If they did, I didn't see what the prejudice was, but when we get to causal connection, your honors, is one of the things that I really have a difficult time dealing with. Dr. Sundares and Dr. Boyer, not only do they testify to working this injured worker up with a history as well as with diagnostic tests, but they also testify to the petitioner's veracity as do respondent's employees that say that he was a truthful guy. They testify to there being an absence that I mentioned during my opening of no pre-morbidities. So each of the treating doctors, when I took their evidence depositions and the question got asked, well, you just related this on history and each doctor says, no, I didn't relate it just on history. I related by checking off the box of anything else in the world that could have caused this and I couldn't find anything. I couldn't find any previous accidents. I couldn't find any previous mentions of back pain. I couldn't find any basketball injuries or injuries in the weight room or diabetes or obesity. All I was presented with was a job that we know is repetitively taxing and a repetitively taxing on a person's low back and both treating doctors stated we can unequivocally testify to the fact that this gentleman's work activities caused the need for his temporary total disability and his need for care and treatment. Now, in what response is there to that? What would lead your honors to not believe that this is a manifest weight of the evidence for causal connection and for manifestation date? Well, there's a section 12 exam from Dr. Karl Graf and Dr. Karl Graf states that because of the fact that there is no specific accident given to him by the petitioner, he can't relate this to a specific work-related injury. We all know it's not a specific work-related injury. The petitioner's not claiming it to be a specific work-related injury. If there was a specific work-related injury, the petitioner could have listed it and given it to Dr. Graf. The question to Dr. Graf was did this gentleman's work history, job duties, and prolonged period of time that he worked these job duties give rise to his low back injury? I charge that Dr. Graf never answered that question. So, once you have the absence of any type of medical testimony to rebut the testimony of Drs. Sondrensen and Boyer, you don't have any medical testimony that states anything other than this gentleman's work injuries caused his work-related condition. You might be able to say, Your Honors, that one of the respondent's employees tried to list in a document that the petitioner wasn't doing that strenuous of work at the time of the manifestation date. But then again, that is a opinion that the particular respondent employee contradicted themselves on in earlier documents. So, as I mentioned, I failed to see how a manifestation date wasn't found. And then I failed to see how this decision, especially from a causal connection standpoint, isn't against all the evidence before Your Honors. Because I don't see any evidence medically that states that it was caused by anything but this work-related injury. So, it's a pleasure being in front of this distinguished panel. I just never thought I was going to be in front of it on this case due to the abundance of facts that I believe are mostly uncontradicted and not disputed. And with that, Your Honors, I'm happy to field any questions or reserve my time for rebuttal. Any questions from the bench? Councilman McManus? No? No questions. You will have five minutes in reply, Mr. McManus. Thank you, Your Honor. Council Capoletti, you may respond. Good afternoon, Justices. Mr. McManus, Elizabeth Capoletti on behalf of Employer Wilbur Wright College. I would respectfully request that the decision of the Commission be affirmed, as I believe it is supported by the manifest weight of the evidence. And I really think this is the claimant bears the burden of proof. And I would submit they just rejected it arbitrarily, but they did not do that in this case. The Commission went to great lengths to examine the basis of both Dr. Sundararajan and Dr. Boyer's opinions and simply found them lacking. Dr. Sundararajan stated, and I'm quoting, it's my medical opinion that the nature of his work in janitorial services with heavy lifting, pushing and carrying significantly impacted his medical and ultimately surgical condition. Now, I know I'm parsing words here, but she used the word impacted, and we are in the workers compensation arena. And words do have meaning in terms of art. There's no testimony that his injury was caused. There's no testimony that it was aggravated. There's no testimony that it was accelerated. All we know is that it was impacted. I'm not sure what the definition of impacted means. And moreover, more importantly, we have to look at what is it that allegedly impacted his condition, the nature of his work in janitorial services with heavy lifting, pushing and carrying. Dr. Sundararajan was asked, is janitorial services a heavy job? She answered, in general, not in regards to the claimant, but in general, that many patients she treats who work in janitorial services do a lot of bending, stooping, twisting. And in general, many patients she treats are asked to carry, lift and push large amounts of weights. That's just in general. The basis of Dr. Sundararajan's causation opinion is a general understanding of what she assumes the claimant's job duties are. And in fact, when she's questioned as to the basis of her opinion, she testifies that it's based upon an assumption of claimant's line of work. She testified she never reviewed a job description. She testified she didn't know what duties caused his pain. She testified claimant never told her about lifting, pushing or carrying at work. Her entire opinion was predicated on an assumption of what it is the claimant did, not on what the claimant's actual job duties are. And further, when she offered her opinion, she did so. She would not say it was to a reasonable degree of medical and surgical certainty. And as a claimant pointed out in his reply brief, the questioning before was a bit confusing. But then she asked for clarification and clarification was given. Specifically, the question was, no, it's asking whether your opinion is based upon a reasonable degree of medical certainty. Answer, I believe it's based upon a degree of medical certainty. Certainly demurred as to whether or not it's a reasonable degree of medical certainty. And I would submit that's the standard. Now, I certainly concede that you don't have to use the magic words, but you do then have to prove some sort of specialized knowledge and experience and grounded in recognized medical thought. She did not do any of that. So she has an opinion that she offers based upon an assumption of her beliefs of claimant's job duties, when in fact he never informed her of his actual job duties. So the commission rightly found that her opinion was not reliable, as the same with Dr. Boyer. Dr. Boyer, as counsel pointed out, based his opinion on the history. And he said, so based upon the history that he, claimant provided, my opinion would be that he injured his back at work, resulting in the need for surgery. So he was questioned about what that history was, what history was provided to him. And then August 24th of 2021, when the petitioner initially treated with Dr. Boyer, the history is as follows. Symptoms have been present for about one year. These symptoms were precipitated by no particular injury. That's the history provided. That's the history memorialized in the medical records. Now, certainly during Dr. Boyer's testimony, he recalled a discussion during that initial visit, which was not memorialized in the medical records, but that the claimant had told him that he had experienced multiple episodes of back pain after lifting. That was the history that he recalled. When questioned about this history, Dr. Boyer could only actually recall a history of claimant lifting one heavy box on one occasion. Dr. Boyer didn't know how heavy the box was on that occasion. That was all he could recall about the history provided to him by the claimant regarding his work duties. Now, Dr. Boyer did testify that he thought he could recall that the claimant frequently lifted items weighing 50 pounds or more, but Dr. Boyer couldn't recall how often. He couldn't recall when this happened. He just thought he had a vague recollection of outlifting 50 pounds. Moreover, Dr. Boyer did not have any knowledge of claimant's actual job duties, as he didn't even know what job claimant performed. He testified he could be a maintenance, or he could be a mechanic, or maybe he was something else entirely. So, all in all, the history that Dr. Boyer relied upon was one conversation he recalled with claimant about lifting a heavy box, the weight of which was unknown. This history is what he relied upon, and lifting one box, one heavy box, is not the appropriate history for a repetitive trauma claim, because that's the theory of this case. It's a repetitive trauma claim, and Dr. Boyer simply had no knowledge of the claimant or his actual job duties, and his testimony simply doesn't support a theory of repetitive trauma. And I do want to talk about repetitive trauma and the job duties, and I don't disagree that petitioner's job duties required lifting, sweeping, mopping, dusting, moving cabinets. He did that, and as Ms. Morales testified, those were his job duties over a 10-year period of time. But I would submit to you that, as showing to be repetitive trauma, it must be more than just vague descriptions or assumptions about a job. He worked as a project janitor, and he'd done so since 2011, and he did perform a variety of tasks within those 10 years. But the question really is, are those tasks then thusly of a repetitive nature? And there certainly is no precise mathematical formula in which to say, hey, this is now a repetitive job. I certainly understand that, but there must be some showing. Claimant's testimony was that following COVID-19, which would have been in March of 2020, his job duties increased. He had to lift, bend, push, carry stuff. And when directly asked on direct examination what was a lot different, he said, look, I had to lift heavy furniture, which he conceded required three or four people. This testimony, though, was completely discounted by Ms. Morales. She disputed claimant's contentions and testified that claimant did not lift furniture, did not strip floors, did not wax floors, did not push nor pull heavy objects, did not bend continuously, and did not have to rush to meet a deadline. That was claimant's testimony was because of after COVID, they were having to do all these big projects. Ms. Morales disputed that and said that, in fact, was not true. She, in fact, testified that she was attempting to keep everyone on the payroll. So janitors were only scheduled once every two weeks, and she was hoping that they would go at a slower pace in order that she could protect their jobs. So during this time period that petitioner alleges that his job duties increased and the repetitive nature increased, he literally only worked 12 shifts within three months period of time. Now, he did not only at trial, he testified this all started post-COVID because they were doing these projects with which Ms. Morales disputed, and the commission found her testimonies particularly to be credible. Claimant also alleged his back pain developed between March of 2021 and July of 2021, and he filled out an accident report in July 26, 2021, alleging that during this period of time, he was carrying furniture, boxes, heavy items, stripping floors, cutting grass, and landscaping activities requiring continuous bending. Again, Ms. Morales testified in the opposite. She testified that the claimant did not carry furniture, did not carry nor move boxes, did not lift heavy items, did not strip floors, and did not perform landscaping that required prolonged kneeling. She did say that he was cutting the grass on a power mower. Again, the commission found her testimony to be credible. Now, again, there's no question the claimant did various job duties as a project manager over 10 years. What is not known, what is not in the record, is how often did he perform each of job tasks? When he performed a task, how long did the task take? How many times did he perform the task? How did he perform the task? How much did these items actually weigh? How often did he have to lift items? Ms. Morales explained that the heaviest item that he'd have to lift would be 30 pounds. Certainly, she marked a box that said that he would have to lift 50 pounds and that he'd have to be able to do it five times during a shift, but she explained in her testimony those were simply the requirements to get the job, not that that was what the job itself entailed. So, we know that Petitioner used equipment and machines. How often? When did he use those machines? How much did they weigh? How many times a day did he use those? There's simply no testimony as to what it is that the Petitioner did, other vague descriptions as to what it means to be a janitor, and Ms. Morales' testimony, who the commission found credible, disputed claimant's condensions about what he was specifically doing during these alleged periods when this alleged repetitive trauma claim existed. And I would submit to you that the case law does indicate that there must be something in the job that shows the repetitive nature, whether it be how many times or how much weight is lifted every shift during every hour, whether it be the nature itself of the job, meaning the method and manner of how the job is performed to show that it's repetitive, there must be a showing of the same. That did not happen in this case. There is no testimony regarding the specifics as to the Petitioner's job duties other than vague descriptions as to what happened over a 10-year period of time, and then the specifics of what the Petitioner alleges he performed were, in fact, disputed by Ms. Morales. Let me stop you for one second, if you would. Ms. Morales' August 24, 2021 demand of job form, that is the one that you're suggesting she testified that that was just the general duties of a janitor? Correct. She testified that, pursuant to the union agreement, I believe, that they had to fill out what are the core requirements in order to qualify for the job. In order to qualify for the job, you had to have the ability to lift 50 pounds. That particular August 24, 2021 demand of job form list, doesn't it specifically say current job duties? Are you suggesting that that was a generic form? It was not a form filled out specifically for this claimant? I guess I'm not suggesting. I'm going by what she testified to. She did say that she filled that out. For him. Right, and for him, but as part of the union, that had to be the requirements that you must be able to do things in order to be in the job. She went on to testify that those were not requirements of the job every day. In fact, she testified that the most they would lift on their own was 30 pounds, and that the heaviest piece of furniture that she knew of weighed 30 pounds. After it was above 30 pounds, then that they would have to have assistance in order to lift anything over 30 pounds. Okay, that was her testimony. Yeah, no, I understand what her testimony was with regard to that. It was just that the fact that that form was filled out specifically by her and listed as current job duties creates a little bit of ambiguity in my mind as to whether at that time when she filled it out, she was saying that these are his current duties, and these are the things he is currently doing. How I would perhaps read it, and then she later testifies that no, those are not what he was currently doing. What he was currently doing was cutting grass, essentially. Correct, and she did clarify as to why she did put that into the form. Right, and clearly the the Commission, the arbitrator, found that her testimony was credible. Correct, and I certainly think I don't mean to say that the Commission found Klamath incredible. That wasn't right. They particularly found Ms. Morales credible, right? They felt that the claimant just failed to meet his burden as it was as relative to explaining his job duties, and that he did his best, but it just wasn't there. So, I would submit to you that relative to manifestation date, and notice those are derivative to accident and causation, and I speak to accident and causation in one breath in repetitive trauma because they're so hard to portion, to separate out accident and causation when we're talking about repetitive trauma, and if you don't have an accident, and I would submit that the claimant failed to prove that his job duties were repetitive, you don't get to the next phase. Oh, I'm sorry, I missed the red light. Thank you very much. I appreciate your time, Justices. What did you want to sum up? Oh, yes, in summary, I would just ask that the decision of the Commission be affirmed. Any questions from the bench? No, no, okay. Thank you, Counsel. Counsel McManus, you may reply. Thank you, Your Honor. My esteemed colleague spent most of her time right now asking Your Honors to decide this case solely on semantics. Ms. Capoletti did not address the fact that she does not have a medical opinion that is relevant whatsoever in this case. Ms. Capoletti chose to argue to Your Honors that somehow you should discredit the opinions of a board-certified internist who works with janitors on a daily basis, as well as a board-certified neurosurgeon who both opined that they believe that the reason why this gentleman had his low back condition was because of his repetitive work duties. And they didn't just base that opinion, Your Honors, on Mr. Bowden's history, they based it on his lack of any pre-existing history, his lack of anything that would suggest anything otherwise other than his work duties or what caused his work-related injury. My burden is to prove a manifestation date. I didn't hear Ms. Capoletti even argue that. If you wanted to find 7-26-21 as the manifestation date, I could understand that. I do think August 20th is the more appropriate manifestation date based upon this Court's prior rulings and the Supreme Court and Mr. Bowden's actions to continue to work and try to push through it until he couldn't do it anymore. So once I sustain my burden of proving the manifestation date, then it becomes my burden to prove causal connection and to prove notice. My causal connection burden I submitted to the Court evidence depositions that Dr. Sundren says, in my opinion, the nature of his work in the janitorial services with heavy lifting, pushing, carrying significantly impacted his medical and ultimately his surgical condition. This is my opinion as a board-certified internist. She further goes on and says, based upon my experience as an internist, I do take care of a fair number of clients involved in this type of work, the janitorial service, as I work for a group that takes care of these employees. He's not morbidly obese. There's no history of a previous injury that could have aggravated his symptoms. Likewise, Dr. Boyer testifies to the same. So it's not that these doctors made an uninformed opinion. They made a very informed opinion and they understood. And also, Your Honors, it's not like a doctor said, well, if he has to lift 30 pounds or he has to lift 50 pounds, this is what the nature and what caused it. It's the bending. It's the stooping. It's the twisting. It's the working in awkward conditions. It's the very repetitive nature of it. And if the respondent was going to argue that this gentleman's job duties weren't significant enough to give rise to his injury, why didn't their doctor say that? Why didn't Dr. Graf say, well, if I take the respondent's testimony, you know, with the 82421 report, she signs off that he's lifting 50 pounds. But then I find out, you know, he's only he's not that much. And maybe that extra 20 or 30 pounds would have been what caused the change. He doesn't say that. He doesn't. The doctor doesn't testify to any of that. The doctor simply states that it's not a specific injury. And to sub lay testimony on a medical causation question from a respondent's witness that your honor pointed out that he had a question with when she signs off on a form stating what this gentleman's supposed to do with his job. But then somehow the panel is supposed to believe that even though they're signing off on the fact that he needs to work when he can lift 50 pounds and do these lifting tasks and all that, he's really not supposed to do that in actuality. And on top of that, there's no medical evidence that the respondent put forth to rebut the two treating doctor's opinions, say stating that because his job was lighter than what we thought it was, his repetitive job duties could have couldn't have caused this that that that's devoid. The record is devoid of that. As I mentioned in my opening, the record is devoid of that. What we'd be doing by affirming this award is punishing a young man who worked his hardest through a number of conditions because of maybe a semantic based defense, no defense on on any merit, just on trying to trip a young kid up with with. How he presented a legitimate. Repetitive work related injury to his employer and also the panel can tell. Mr. McManus, your time's been you've been over time for a little while, so would you like to sum up, please? I would, Your Honor. I ask that you reverse the decision with respect to manifestation date and find the 820 of 21 manifestation date that your petitioner asked for. If the panel does not believe that's the manifestation date, we ask you to find some manifestation date as the arbitrator didn't do so. The petitioner also respectfully asked your honors to reverse the findings with respect to causal connection. For the reasons I've stated, your honors and reverse defining with respect to notice. Thank you. Thank you, distinguished members of the panel. It's been a pleasure. Very good. Thank you both for your arguments in this matter this afternoon. It will be taken under advisement and written disposition shall issue and at this time, clerk of our court will escort you from our remote courtroom and the court will further proceed. Thank you. Thank you, Your Honor."
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"stt_transcript": "Clark v. Dorrit, Sheriff of Cook County Mr. Clark was residing at Cook County Jail when he was beaten with a wheelchair arm by another detainee. This happened when, in the four years prior to the attack, there had been 16 documented incidents of detainees removing wheelchair parts of serious weapons and using them as serious weapons. Yet, jail officials had not taken any remedial action, and that failure to act resulted in Mr. Clark's injuries. In 2015, before those 16 documented incidents, there was one ADA compliance lawyer who considered looking for other alternatives, and she did start that search and determined that she wasn't going to make a recommendation for another wheelchair. And then, in those four years, between 2015 and 2019, when Mr. Clark was attacked, there were at least 16 other documented incidents, and there wasn't another search conducted or any other investigation. And the district court... Have you... Is there any evidence on the record that, during that interim, there were, in fact, new products on the market that should have been investigated by the Cook County officials? There is evidence in the record that there were other steps they could have taken. That evidence comes from our corrections expert, Bear. And the evidence is that, with a quick search, it would have been discovered that the brand that the ADA compliance lawyer originally ordered had a period of time where there was a defective batch. So, in that period, there were changes to what was available, and that was easily found with a search. I'm not too sure I understand the relevance of that evidence. Well, in 2015, the compliance lawyer considered, on her own, of her own volition, could there possibly be something on the market that would not be used as a weapon? Now, at the time that she was considering that, she had been informed that weapons were being used mostly to destroy property in the jail. So, the inaction in those four years where there was serious harm inflicted upon people, a jury could find was deliberately indifferent, especially considering a jury will hear evidence that, in that time, technology changed, and a jury will also hear evidence from the expert that it was unacceptable, at that point, for jail officials not to reconsider their decision back in 2015. What kind of evidence? Was there a new product? Was there evidence that other penal institutions were, in fact, introducing new wheelchairs that were safer and more secure? Yes, there is evidence that the same company was making a chair with resin that didn't have this defect, and over 400 jails and prisons across the country were using it. And, at this stage, plaintiff does not need to find the perfect wheelchair, just needs to show that there was evidence that rebutted what the ADA compliance attorney said, that the district thought supported deliberate indifference. For example, the expert also said that he had previously worked at a jail where wheelchairs were not accessible to detainees while they were inside their cell sleeping. They only had access to their wheelchairs when they needed to use them. And there's evidence in the record that, at Cook County Jail, there were 70 cells that could be used as two-person or single cells instead of this dorm-style area where Mr. Clark was residing with these wheelchairs that were potentially weapons. So there were solutions that could have been considered. The problem here is that... Was that considered in 2015 or after? There is more that would have been found if the search was continued in 2015, but especially by 2019, there was even more evidence of alternative solutions. But that's not limited in that four period. There were advances before 2015, but Ms. Rivera ordered the one chair. It was defective. She didn't reach back out to the same company to see if it was a problem with that specific chair, didn't ask for a replacement, didn't search for other chairs, didn't talk to people at other correctional facilities that had ordered the chair prior to her ordering the chair. And so there is some evidence that had she continued that search, they could have found other alternatives. And there's evidence that Cook County Jail does, in fact, do this with other things that it considers to be weapons. And they have that authority to go to CIRMAC and say, you know, this is unsafe, it's harming our detainees, and we need to talk about an alternative. The problem here isn't that she never found the perfect one, it's that there was no initiative on the part of jail officials to actually consider if there were going to be better alternatives, especially in 2019. Even though at that time there were other spinoffs of the Weapons Free Committee, such as, you know, the inhalers could be used as shanks. So the medical staff was working with jail officials to determine what can we do about that. We know that people need their inhalers, but we also can't have weapons, especially considering the problems at Cook County Jail with this dorm style where you can have 20 to 30 people sleeping in the same area. And this policy they have where guards can leave their post and leave it to someone in the hallway to supervise. And there also was other evidence in the record that Rivero herself was not considering the risk that she knew this wheelchair was causing, and she instead was assessing ADA litigation risk. So the part that the district court quoted where she said, you know, she didn't reconsider her decision in 2019 because she determined that these incidents, these violent incidents are a drop in the bucket compared to the obligation that Cook County has under the ADA. But our experts said that that's unacceptable to not weigh the security risks of a medical device in the name. I must say I don't understand what this has to do with the Constitution as opposed to state law. It sounds like you're making an argument that in tort litigation would be called a crash-worthiness argument, that Ford has to design its cars to be resistant against crashes. But under the Constitution, the need is to show that the sheriff chose a particular wheelchair because he wanted harm to come to prisoners, not that it's not a crash-worthy chair. So how is this a constitutional argument at all as opposed to an ordinary tort case? Well, this is not a case where there was an express policy by the sheriff where he said, I want weapons in prison so that detainees can do whatever they want with them. This was a decision by jail officials that after each repeated incident where they could see there's a weapon being used, there was never a decision to have wheelchairs made for prisons or jails. Yeah, that's why this sounds like a crash-worthiness case. Ford knows that its cars get into crashes, so it has to design a collapsible steering wheel. I understand that. It's a tort theory that is widely used. But what does it have to do with the Constitution of the United States? Well, the theory is a little different here. It's that jail officials knew based on what they know about the dangerousness of jail and based on this pattern. That's the nature of a crash-worthiness claim. If you know that your cars get into accidents, you have to do the following things. But the Supreme Court says that to show an Eighth Amendment or Fifth Amendment problem, negligence is not enough. You have to want harm to come to prisoners. What is the evidence of that? What we have here is a—we have notice, evidence of that risk, and then inaction. Or I guess you could say it as an— No, that's why it's a crash-worthiness case. What you haven't shown is compliance with the need to show that the defendants intend harm to come to prisoners. If you think about Farmer against Brennan, the Supreme Court says guards know that prisoners attack each other, but they don't have a duty to prevent that as absolute liability. Only when they show deliberate indifference to it or when they want it to happen is there a problem. You seem to be making the tort argument without the constitutional argument. That's my concern. The deliberate indifference argument would be under Gleason or under JKJ that with awareness of this serious risk, they chose to disregard the risk. That's the deliberate indifference. They chose to do nothing about it, even though this harm kept happening, when they had the ability to intervene. And in fact, the authority and the duty under the 14th Amendment to intervene. You know in these assault cases, the courts keep saying you have to know there was a particular risk to a particular prisoner, and you closed your eyes to that particular risk. Not that you knew about general risks that prisoners attack each other. Well, you can have the general risk that prisoners attach each other with detachable wheelchair arms, and that's our case cited in the brief. Prisoners attack each other with bed sheets, with bed slats, with knives made by whittling down bed slats. Are all of those things constitutional violations? The constitutional violation is the duty to decrease or mitigate or eliminate a serious person. No, it is not. The Supreme Court has rejected exactly that line of argument. Okay, your time has expired. Thank you, Your Honor. Mr. Cassis. Good morning. May it please the Court, Counsel. I'd like to address a couple of issues right up front based on counsel's arguments today. First off, the argument regarding no new products being identified and whether the issue of the first batch being defective and 400 other jails around the country using it that their expert had commented on. None of that is in the opening brief. That was never raised, and therefore that issue was waived. Further, the discussion regarding cells at the jail having to do with the dormitory settings and the availability of individual cells, that also was never in the brief and not raised. The issue here is simple to, is directly towards the question of whether the jail should have tamper-proof wheelchairs. That's something that was simply – it's a very narrow issue, and it should not be expanded to include – I would say it's not remotely a narrow issue. As I said to your adversary, the very same arguments can be used when prisoners misuse bed slats or sheets or take kitchen pails and knock each other on the head and so on. If accepted, it is a staggeringly broad conclusion. Yes, Your Honor, and at best, a general risk of violence is not enough in the jail, as Your Honor indicated. Anything can be made into a weapon, and perfection is not required, and officers and officials are not required to foresee anything that could happen. Also, I would like to point out that the discussions regarding the chairs itself and how one batch was tested, the expert called the owner of Merlexi, who said that they're the only correctional wheelchair in use, and that is the exact product that we tested. So the idea that we would be expected to repurchase the same product and then have that – take the chance of that breaking again and being created into shanks is not reasonable. When was that phone call made, according to the record? I believe it was in – I'd have to check the exact date. I believe it was in 2018, but I'm not certain. Counsel, Judge Rippo is not in the screen. I apologize. You should face the camera. Thank you. I do not know the date. It was not 2018. I believe it was in – I believe 2021, but I am not positive. If there's no further questions, we'd like to stand on our briefs and ask that the court affirm the granting of summary judgment in the district court. Thank you very much. Thank you, Your Honor. The case is taken under advisory."
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"stt_transcript": "The Honorable Judges of the United States Court of Appeals and the 47th Judicial Circuit. Good morning everyone. Our first case for oral argument this morning is Grinnell Mutual Reinsurance Company v. Shermar Oil. Ms. Steele, whenever you're ready. May it please the Court. My name is Miranda Steele and I represent the appellant, Shermar Oil. I've reserved three minutes for rebuttal time. Shermar Oil is owned by an Indiana family that's been serving the community of Indianapolis for over 20 years. In its operation of a gas station and convenience store downtown Indianapolis, Shermar Oil maintains an occurrence-based commercial general insurance policy with Grinnell Mutual. This appeal is taken from the Southern District of Indiana, an entry of summary judgment in favor of Grinnell Mutual, finding it has no duty to defend or indemnify Shermar Oil for claims arising out of the conduct of one of its employees. Shermar Oil is asking this Court to reverse the judgment entered on both defense and indemnity and to enter Shermar Oil's cross-motion for summary judgment. At minimum, we are asking this Court to reverse the judgment as to Grinnell's duty to defend, as this alone is triggered by the direct negligence claims as alleging harm caused by accidental conduct, according to the Indiana Supreme Court in Frankenmuth v. Williams. This case is a matter of contract interpretation. This is a bargain for exchange between Shermar Oil, who agreed to pay premiums to Grinnell Mutual in exchange for insurance coverage as expressly stated in their policy. Ms. Hill, you are disputing that an occurrence under the policy requires an accident, are you? No, Your Honor. So you're not disputing that if the conduct was intentional, it wouldn't fall within occurrence? No, Your Honor, but it does need to be analyzed separately for each potential... I understand that. You're not disputing that the District Court's determination that, based on the video, that Mr. Paul's actions were intentional? No, Your Honor. We don't dispute that. And do you agree that in order to prevail here, we would have to find that the separation of insured provision requires us to analyze your client's conduct, or to analyze the intent or accident from your client's view as opposed to the employee? Yes, correct. So in other words, if separation of insured provision were not in the contract, you agree that you would not be able to prevail? No, I don't agree with that. I think the Indiana Supreme Court has already said that even when there's not a separation of insured provision... I'm sorry, this was the Northern District of Indiana commenting on Indiana Supreme Court precedent from Frankenmuth, saying that that case supports the notion that courts should look to each co-insured's conduct separately, even without a separation of insured provision. Did you argue this in your briefs? Because your briefs really focused on the separation of insured provision. Yes. In our first appellant's brief, we, of course, cited the cases that analyzed this exact language, but then we also included American Family Mutual Insurance v. McCowan, which doesn't have a separation of insured, but still says, you know, because policies are interpreted from the standpoint of the insured. So if the insured is reading a policy, they understand to have coverage unless the policy says that they don't. This policy clearly defines Shermart Oil as uninsured, and defines as a potential other insured, its employees, but while acting within the scope of their employment. There has not even been a finding that Mr. Paul, the shooter, was acting in the scope of his employment. But you don't need a finding. You just need the allegation in the underlying complaint, which is clearly there. Correct. But when interpreting the policy, the policy says maybe there's a co-insured with Shermart Oil, but Shermart Oil is definitely an insured. It's a separate insured. It's to be treated as if the named insured were the only named insured, and to apply separately to each insured who might have a possible claim against it. It's expressly separating those insured so that their conduct can't implicate another. But it's a vicarious liability theory. None of the cases that you rely on involved vicarious liability. They all involved direct liability. The question before this court is not whether Shermart Oil is ultimately liable for vicarious liability. And I'm not suggesting it is, but we do look at what the underlying complaint in state court alleges, and that alleges a theory of vicarious liability, not a direct liability. So when assessing coverage, we have to look at the claims and what the claims are alleging. Yes, the district court used just the allegation of vicarious liability to impute this person's criminal intent as a matter of law, even though agency hasn't been shown. The only issue before this court is if there's any allegations that could possibly fall within the scope of coverage, which is any allegations of harm arising from accidental conduct. And even notwithstanding a finding of agency, agency doesn't override Grinnell's contract. It contracted to provide insurance unless we intended or expected the harm. Well, that's not exactly the case, right? I mean, the definition of occurrence in some of the cases that you rely on, definition of occurrence makes it clear that it's whether the bottle-injured property damage is expected or neither expected or intended from the standpoint of the insured. But in this policy, the definition of occurrence doesn't have that particular provision, right, with regard to whose standpoint. I mean, I think your argument would be, you know, much stronger if it did. And I'm wondering whether it makes a difference that the definition of occurrence in the policy at issue here does not have that provision. Your Honor, I think one of the mistakes the district court made here was not reading the policy as a whole because when you get to the exclusions, Grinnell specifically excluded intentional conduct, but only from the standpoint of the insured. That language is in there. They tell us whose standpoint must intend the harm. It's just not in the same place. But doesn't it first, I mean, I think the point that Grinnell makes is that before you get to the exclusions, you have to first determine whether or not the claim falls within the coverage, right? And that question comes down to whether or not it falls within definition of occurrence. Yes, but you can't decide. You can't not read the whole policy in order to decide the meaning of one part. You have to read the entire contract to understand the meaning of the contract. And here the insureds are separate, and the policy specifically includes or excludes intentional conduct resulting in bodily injury intended or expected from the insured. Indiana Supreme Court has already been very clear about what that language means. When an insurer excludes any insured, that can implicate multiple insureds. This is holiday hospitality. Just as Steve and David said, the result is completely different when they say the insured because that refers to one person as any average insured would read that language. And when it excludes any insured, that can implicate multiple insureds. Here Grinnell defines Shermart Oil as the insured. It says other people could potentially be insured, but you are the insured. You are the only insured. You are treated separately under the policy, and bodily injury is only excluded if intended or expected by the insured. But again, I guess my question is how do we get there? In order to get there, we have to first determine that it's an occurrence under the policy. And so why is this an occurrence as defined under the policy? Why does it fall within the coverage the policy provides? Because there is no evidence, there is no allegation, that Shermart Oil expected or intended the bodily harm. But then you're taking the language from the exclusion and then you're applying it to the policy. Aside from the exclusion, I'm trying to just focus on the language of the coverage itself. Sure. The coverage grant, like most occurrence-based policies, occurrence is defined as an unexpected happening without intention or design. And if the question is who has to intend or design the harm, the policy tells you. But you have to look to the underlying complaint and the theory of liability to determine if there's a duty to defend. And the underlying complaint does not, say, base its liability on Shermart Oil's intent. It's not a direct liability claim. It's a vicarious liability claim. There are two claims. There's a vicarious liability claim, and then there are other claims for negligent hiring, retention. So the negligence is a separate issue. But negligence alone is a distinct harm caused by accidental conduct. That alone triggers defense under the policy. But the case law is clear. You don't just look at the label of negligence. You look at what the allegations are. And the allegations against Shermart Oil, at most, was that it was negligent. Well, maybe that's for the direct liability. But, again, the vicarious liability is based on the conduct of the employee. So after acknowledging that Shermart Oil was entitled to separate analysis under the policy, the district court used the allegation to impute the employee's criminal intent as a matter of law around the express policy language. But the law is clear that the separate provision, a separate consideration, doesn't expand the scope of coverage. We're not asking to expand the scope of coverage at all. We're asking for the policy grant that it's given. Again, vicarious liability is a legal theory based in agency. That's not proven yet, but it doesn't have to be proven. It's alleged. But the Indiana Supreme Court has already rejected categorical exclusions before you get to the policy. It has already said negligent hiring and retention is not a categorical initial bar to coverage, like the district court says here. It strikes me as kind of odd, though, that you're arguing your theory for why it's covered is that the claim is meritless. You're saying that vicarious liability, as Judge St. Eve said, kind of by law imputes, says the employer is liable for all of the acts of the employee. Right, if proven. And you're saying, well, sure, if proven, you can impute the intent. But if it's not proven, then we have coverage. Isn't that basically what you're saying? Well, I would say there's two separate issues. The duty to defend is separately triggered by the negligence claims. When it comes to vicarious liability, it never serves as an exception to a contract. Could I ask you about the negligent hiring and retention? How do we deal with triage? Triage and American painting are the same category of case. They involve professional service that went awry. A person hired a painting company to do painting. Is it professional service or is it commercial service? It's either a product or a service. The reason I ask is because there is some language in American painting as well as triage that what we're dealing with is a commercial relationship, not necessarily a professional one. Either way, we don't have that here. We don't have a contractual relationship. We don't have a professional relationship. You don't think that there's a commercial relationship between the store and its customers? Business risk has to do with a guarantee of work performance, a guarantee of a product. That's not what happened here. This was accidental harm on the premises. Isn't that what American painting was dealing with? Because American painting, we all know the facts. That wasn't focused on whether or not the painting job was good. That was focused on what seems to be beyond the scope actions of the painter who was hired. Although we agree that American painting hasn't been overturned, it's been significantly narrowed since it happened. Hold on for a second. Triage, though, cites American painting with approval. We're trying to, whether or not, putting aside the question whether or not I think it's right as a matter of law, the Indiana Supreme Court has cited American painting with approval. What we're bound to do is try to figure out what the Indiana Supreme Court would do with this case. Just help me here. How do I get around it? How do we deal with it? The business risk? Well, triage involved defective performance, just like American painting. It was failure of the very security services that it sold, the kind that it probably contracted to provide. Shermar Oil didn't sell a service. It's not asking for a guarantee of a contractual performance or something that would be better covered by an errors and omissions policy. That's what the business risk doctrine is. It's after the initial grant of coverage, which also already contradicts what the district court said about an intentional hiring never being able to produce an accident. Because in order to get to the business risk doctrine, there has to be the initial grant. And the business risk doctrine is an outshoot of the exclusions that Grinnell chose to include, things that would have covered Shermar Oil's business, like the liquor liability exclusion. They specifically excluded negligent hiring, retention, and supervision for liquor liability, other professional services, but nothing that applies to this case. If Grinnell wanted to implicate one insured with the other insured's conduct, if Grinnell wanted to say we're not going to cover vicarious liability, we're not going to cover criminal acts of employees, they had every right to put any of that in their policy. So is your argument with regard to American Painting that the contractual relationship between the painting company and the homeowner is somehow different in kind than the relationship that the store had with its customers here? Yes. And I think the district court... And what is that rule? I'm going to ask defense counsel this exact question. What is that rule that distinguishes the customer from the homeowner that hired the painting company? What is the difference between the relationship between the customer and the store? I think if the customer came in and bought a product and then wanted to sue Shermar Oil for a faulty product, that would be something that would be kind of a contractual relationship. But the business risk doctrine, the district court used this for its language that hiring is an intentional act so therefore it can't produce an occurrence. But this case doesn't say that because later the Supreme Court in Harvey says an intentional act is not the same thing as an intentional injury within the meaning of the policy. So even if we intended to hire the employee, even if we intended to even... even if we knew he kept the gun on the premises, which is not a fact, but that wouldn't show intent to cause bodily harm within the meaning of the policy. They have to show that they're insured, did something to take it outside of the policy, and they haven't done that. There's no facts that show that. Thank you. Thank you. Thank you, Mr. Steele. Mr. Jones. May it please the court. Tyler Jones on behalf of the FLE Grinnell Mutual Reinsurance Company. Today we ask that the court affirm Judge Hanlon's decision granting motion for summary judgment for one ultimate reason, and that is because the shooting issue was not an accident and thus not an occurrence under the plain, ordinary meaning of the policy. This is buttressed by three key points that I'll reemphasize to you today. First, that all parties agree, and you just heard it today from my colleague, that Mr. Paul's acts were not accidental as a matter of Indiana law. Two, the Indiana Supreme Court's decision in triage has held that poor business decisions aren't converted into occurrences, that is accidents, simply because the ultimate harm may not have been intended. So, Mr. Jones, what is it seems to me then that if we take that rule to its logical conclusion, right, then whenever a store owner hires anyone to do anything with regard to the store and it leads to some sort of accident, that would never fall under the CGL policy. Is that your interpretation of it? So, for example, let's say a sign falls, okay, and hits someone, and the store owner goes, well, I hired the sign company, right? Can the insurer say, oh, the hiring of that sign company was intentional, and, therefore, that incident is not going to be covered under the policy? And then, say, a customer, you know, let's say a customer was walking down the hall or walking down one of the aisles, and a shelf falls on the customer. And the store owner goes, I hired a contractor to put up those shelves, and my hiring of the contractor is intentional, so that's not covered either. So then what is covered? Where is that line? Of course. Thank you for the question, Judge Lee. I think that the line ultimately we start again, and this is something that Judge St. Eve was getting at earlier, which is we start with the allegations themselves. A coverage decision is not a merits determination. We look at the language and policy. We look at the allegations. No, no, I understand that. I guess I'm trying to figure out what is the scope of triage, right? How broadly does that rule go? How broadly do you want to interpret that rule? Because our job, right, not only is to try to figure out what the Indiana Supreme Court would do on this issue, but it's to announce a rule that the district courts in our circuit can follow. So what is that rule? I think the rule is what triage reaffirmed in Harvey, Your Honor, or as triage summarized Harvey, which is that it distinguishes between instances of specific physical, personal conduct that caused the harm versus allegations of commercial or professional conduct that caused the harm. So in this case, of course, we have an individual. So a store owner that hires a third party do everything, right? Any accident that comes out of that store, then, would not be covered under the CGL policy because insurer will always argue, you know, hiring that contractor, the painter, the garbage collector, the sign maker, the shelf installer, you know, those are all third parties. And so, therefore, none of those incidents can be accidental because the hiring was intentional. I mean, that's what I think the logical conclusion of the rule that you're asking us to adopt would be. And it seems to me a bit broad. And so I'm trying to figure out is that right or am I missing something? I think in this case, Your Honor, the business risk application here by Judge Hanlon pertains to these specific facts and the direct liability theories of the negligent retention supervision. And those are, if you want to call them guardrails, this is not, as Your Honor suggests, a cart launch any time someone alleges intentional conduct by their own employees to get out of jail, free card. I think ultimately the – It isn't? It isn't for negligent hiring claims? It seems like it is. I'm sorry, Your Honor? It seems like it is for negligent hiring claims. It's a get out of jail card, right? I think – And so what is the difference between this case and, say, the owner hiring someone to install the shelves that falls on a customer? In this case, Your Honor, we have – Would that be covered? The hypothetical of a customer walking down the aisle and a shelf falling on the customer? It would ultimately depend on what the customer's allegations were under the complaint, Your Honor. I can only – So let's say the customer alleges that the store owner negligently hired the installer because the store owner used their cousin, who had no experience doing it. Would that claim be covered? Could Your Honor repeat the hypothetical again? Sure. So let's say a store owner wants to install the shelving, okay, and his cousin is unemployed, right, and his cousin was previously, let's say, a plumber, right, has no experience installing shelves. And the store owner hires him to install the shelves. The shelves fall on a customer, and the customer determines, well, you know what, you negligently hired your cousin because he had no idea how to put these shelves up, and so you're negligent on a negligently hired theory. Would that claim be covered under triage? Your Honor, I don't think under triage that claim would necessarily be covered only because it would ultimately turn on whether or not – the store is alleged to have controlled or even supervised, I think, the employee here in this case. Let's say there's no allegation of that. Let's just say it's purely a negligent hiring case. Because my concern is that if we announce that rule, then a store owner would just hire everyone to do everything in the store and wouldn't even have to consider whether or not that particular contractor was qualified, wouldn't have to do anything because the hiring was intentional. That seems overbroad. I think, Your Honor, the ultimate analysis, and this is what Judge Hanlon ultimately got to in his opinion, is that you take these allegations and these negligent hiring claims in the context of the policy language. In this case, there has to be an occurrence. There has to be an accident. The decision, poor as it might have been in your hypothetical, to hire the unemployed cousin to do that, it wasn't an accident. You didn't accidentally hire your cousin. It may have been that the ultimate harm was not intended. You didn't intend to hire him and have the store shelves fall over, of course, hopefully not. But in this case, the coverage grant, which is the initial question of is there coverage in the first instance, which is Shermar's burden under Indiana law to establish, the coverage grant requires an occurrence, which is defined under the policy as an accident, and that's not there in this instance in the negligent hiring because the decisions, and this is what Judge Hanlon ultimately noted, the decisions with supervision, hiring, retention, these are ultimately intentional decisions, even though the ultimate act of retention, the harm might not have been intended. Thank you, Mr. Jones. Your Honors, I would. Mr. Jones, would you please address the argument of Shermar Oil with respect to the express exclusions and that if negligent, there are express exclusions for negligent hiring, and if they're in the exclusions, doesn't that suggest they would be covered under occurrence? So there is a distinction between the coverage grant, which is the initial question of is there coverage, and then when you get to the exclusions, and then if there's an exclusion, whether or not there's an exception. I'd highly recommend for any law clerks in the room to review the Sheehan decision from the Indiana Supreme Court in which Justice Rutger, who used to be Insurance Defense Counsel, goes through in great detail kind of how insurance policies are structured and written and ultimately analyzed. In this case, we don't even get to the exclusions. That's our principal argument because there is no grant of coverage in the first place. What about the argument that you have to read the contract as a whole? You have to read the insurance policy as a whole. That's right. Reading the contract as a whole means that we look at the entire contract when we're interpreting it, of course. So we read from page 1 of 10 to page 10 of 10 and see is there anywhere in there in page 10, is there a footnote that redefines what an occurrence means. There's nothing in the exclusion language or in the separation of insured provision that modifies the coverage grant language, which simply says, again, this insurance applies to bodily injury only if the bodily injury is caused by an occurrence full stop. That's Appendix A023. And it also expressly says on that same page that Grinnell has no duty to defend against a suit that's seeking damages for bodily injury to which this insurance does not apply. Your Honors, just at the risk of making sure I don't forget this point, I would note there was a request for certification at the end of the appellant's brief. We would just note that certification of the Indiana Supreme Court isn't necessary here. Well-established Indiana principles on interpreting CGL policies and insurance contracts establish how this court can interpret the initial question of if there's coverage to begin with, and then the well-established and most recent decisions in both triage but also EBERT guide this court on how to handle the direct theories of liability. So barring any further questions from this court, I will sit down. Okay. Thank you. Thank you, Your Honors. Ms. Steele, you used all of your time, but I'll give you one additional minute if you have rebuttal. Your Honor, Grinnell agrees that this contract has to be read from start to finish to understand it, and if there's any question about who has to intend the bodily harm to make it fall outside of coverage, the policy tells us the insured Shermera Oil had to intend the harm, and if Grinnell didn't exclude this type of harm, it's otherwise covered. The district court confused the intent to hire with the intent to cause bodily injury. The policy doesn't exclude every injury that can be traced to an intentional act. In fact, Indiana courts and the Northern District agree that this is too confusing and tenuous of a standard for an average insured to understand. That's Verk Boys and the Wayne case. Only those acts which are intended and expected to cause harm are excluded. The Northern District in Verk Boys made that practical plain when they said no employer would intend to hire an employee who goes off on a criminal rampage, for example. Okay. Thank you, Ms. Steele. Thank you. Thanks to both counsel. In the case, the court will take the case under advisement."
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"stt_transcript": "The next case for argument this morning is Appeal No. 26-1133 Hamman v. City of Carbondale, Illinois Mr. Mulcair, whenever you're ready. Good morning. Good morning, Your Honor. May it please the Court, Nathan Mulcair for Appellant Mark Hamman. Your Honors, this is a First Amendment case. The City seeks to silence Mr. Hamman's speech through an ordinance that its own officials cannot consistently understand, an ordinance that was not justified based on particularized evidence, and an ordinance that discriminates based upon the message of the speaker. The District Court's decision not to issue a preliminary injunction in this case should be reversed for three reasons. First, this ordinance is unconstitutionally vague. It prohibits signs in a right-of-way while simultaneously allowing signs for a variety of delineated exceptions, leaving the ordinary reader unable to understand what conduct is and is not prohibited. Second, this ordinance is not narrowly tailored to the alleged harms the City seeks to address. As this Court emphasized in Luce, when a City seeks to justify an infringement upon speech, it must do so through evidence. The City has not provided it here. Thirdly and finally, this ordinance is not content neutral. On its face, it discriminates based on the content of the speaker. Certain kinds of encroachment signs are permitted while others, such as religious and political signs, are prohibited. This content discrimination is anathema to the First Amendment. Mr. Mulgrew, there's some statements in the City's brief that seems to suggest that the encroachment exceptions don't actually allow signs, that it's purely the physical encroachment, say, of a restaurant that has tables on the right-of-way or a sidewalk sale or a block party. And I wonder whether you agree with that assessment. I would not, Your Honor, for at least two reasons. First, the language in this ordinance says no sign may be erected except as provided under Section 17-1-5, the section dealing with encroachments. So if that language doesn't actually allow for anyone to place a sign anywhere, it's essentially meaningless. It creates a right that doesn't exist. So that reinforces the vagueness problem here, but what it also does is it's inconsistent with how ordinances, statutes are interpreted. If an ordinance says you can get a permit for a temporary sign as delineated in this section, that's exactly what that ordinance means. But secondly... So how would the City have structured its ordinance otherwise if they were really focused on just the encroachments? Well, Your Honor, I think they would have written the encroachment language differently. They would have clearly indicated that no signs were available. And in fact, to answer your question specifically, 17-1-5 actually includes language that specifically references signs, and at least two places in that statute, specifically subsection E-1, which talks about a temporary encroachment permit for displaying banners, a type of sign. In that language, the City very explicitly allows for a banner encroachment for certain kinds of content, arts, cultural activities, tourism, things like that. So the City has chosen, it knows how, to allow for certain kinds of content, and it has chosen in this ordinance to prohibit other kinds. So it has chosen by its very ordinance text to choose what kinds of content are protected and what are prohibited. I guess I have two questions on that. One is that what are banners versus signs? Is there a difference? Your Honor, I don't think there's a material difference here for this case. What is your understanding of what a banner is? Well, I think a banner would be a sign, but one that might be made of cloth or some other more flexible material than a hard sign, than, for example, the small signs of approximately this size at issue here. So I think it's still displaying text, which is the content-based. My other question is, I was looking for it, but I didn't see you raise subsection E in your briefing in this case, or below. Your Honor, subsection E in particular is a point that I'm raising now in response to your questions. We've, of course, discussed the ordinance as a whole in 17-1-5 throughout the case, but this subsection in particular I'm raising in response to your question. And I think the other point— Mr. Holker, on the question of whether or not it's narrowly tailored, one of the city's interests that they have given for precluding these signs in the public right-of-way is the aesthetic value. I don't see you addressing that point. You've addressed the safety point, but not the aesthetic value. Well, Your Honor, I think under Luce, for both safety and for aesthetic value, what the city must do in order to justify that, to justify that infringement, it has to provide the evidence. But my point is you didn't argue anywhere below or in your appellate briefs that there's a problem with their aesthetic value argument. Well, what we've argued, Your Honor, is that there's a problem with their lack of evidence. As to safety. Your Honor, we would submit that that argument applies to both safety and to aesthetic value. I think the Luce decision in particular is addressing a similar restriction, although perhaps not quite as broad, but a restriction on signs within 100 feet there of the roadway. And what this court emphasizes for that restriction, the city needed to justify it, provide evidence to justify why that restriction was required. And whether it be safety or aesthetics or any other interest the city may assert here, it hasn't provided that empirical justification. Don't we not leave our common sense? I mean, we use our common sense, right? We don't leave that at the door when we're doing this kind of analysis. I mean, one can imagine that a public right-of-way with 100 signs might not look so good, right? So what kind of empirical evidence would you be saying that the city would have to offer? Certainly, Your Honor, and I think Luce illustrates that. Because in Luce, there were two provisions that this court addressed. One was a prohibition on signs that actually overhang the road. And there, this court used common sense to say, well, there's a pretty obvious reason why you want signs overhanging the road. But then, when the court looked at a prohibition of signs up to 100 feet from the roadway, this court emphasized something different. What kind of empirical evidence would you want the city to offer on aesthetics? Well, Your Honor, I think at minimum, testimony of some kind, certainly studies or expert testimony would be preferable. I'm not suggesting that there's some sort of hard and fast you must have an expert or anything like that. Here, the city hasn't even offered anything on those alleged interests. It's taken the position it doesn't need to provide evidence. But I think that leads back to where I started here, which is the vagueness problem. Because as interpreted by the city, this ordinance sweeps much broader than ordinances this court has upheld. It sweeps much broader, for example, than the ordinances the court upheld in Grand Chute. Because, as interpreted by the city, this ordinance prohibits all signs within any publicly owned common area. Essentially, any public land whatsoever is swept in within this ordinance. The ordinary reader reading the ordinance has no reason to understand that. And, to the vagueness point, the ordinary reader reads this ordinance and sees listed many exceptions, methods of speech. For example, signs that are placed more than 20 feet away from the right-of-way. Signs used in demonstrations. And signs for which a non-profit organization receives a permit. None of those sections say that they are limited to private property. The city now, in its arguments to the lower court and this court, limits those provisions in that way. But none of that is contained in the actual ordinance itself. So that's the really core vagueness problem. The average reader, the ordinary reader, can't understand, when they look at this ordinance, that it means what the city now, through the process of litigation, says it means. So that, your honors, is the vagueness problem here. And it's what leads to the content discrimination and lack of narrow tailoring. Because the narrow tailoring analysis would be very different if an ordinance was limited to the actual right-of-way. But instead, this city has applied this ordinance much more broadly. In fact, under the city's interpretation, because right-of-way means any publicly owned common area, it could be a public park or public wilderness or something like that. Someone could be standing thousands of feet from any roadway. But still, because they're on a publicly owned common area, the city would assert that the use of a small sign of approximately this size is prohibited. And that's vastly inconsistent with this court's analysis. And loose. And I think, to your honors, the city has other means available to address actual concerns. For example, Judge Maldonado, you brought up a concern if there are hundreds of signs. The city certainly could enact reasonable time, place, manner restrictions on the number of signs, for example. The size of signs. It could enact an ordinance saying that signs must not damage the ground. The signs used here are of the type that just use a small metal stake and don't actually interfere with the ground at all. The city can enact many such ordinances. But when it's regulating speech, it has to do so with precision, with narrow tailoring. And this ordinance is far from that. And I think, finally, to turn to content neutrality, the city relies on City of Austin. But this ordinance, on its face, especially as the city interprets it, is not limited to a location-based rule, but is a content-based rule. So nothing in the encroachments provisions limit the potential encroachments, even potential sign encroachments, to signs that are at a particular location or justified by being at a particular location. Rather, the city has created a system where those signs can be nearly anywhere on public property, while other signs, religious signs, political signs, are prohibited. For example, the block party provision contained in the ordinance does not contain any language limiting a block party, either prohibiting it from having signs or prohibiting the location of the signs. So if the city chooses, a block party could potentially put a sign advertising its block party in the very location where Mr. Hammond sought to put his signs. So this makes the content discrimination very stark here, Your Honors. Or, I guess, if there's a block party, there's, for example, if Mr. Hammond was attending the block party, there would be nothing in the exception that would preclude him from putting down his sign during that block party. Yes, Your Honor, and that's why this is not a speaker-based distinction. Mr. Hammond could have a block party. What it is is a message-based distinction. Some messages are allowed, block party messages, restaurant messages, while others are prohibited, depending not on any location justification but upon the content of the speaker. So your reading of the encumbrance exceptions is that any sign must be related to the purpose of the encumbrance. I think even that reading, Your Honor, is not very clear from the ordinance, which brings back to vagueness again that the actual scope of these encumbrances is really not clear in the ordinance, which gives the city significant discretion to decide what messages are and are not acceptable. I respectfully reserve the remainder of my time. One more question before. I have a hard time understanding your argument that alternative means were not available here, given that your client could have held the exact same sign in the exact same position without any problems. He just couldn't put it in the ground. That seems like as easy of an alternative communication as possible. Your Honor, I have two points in response, first a doctrinal and then a practical. So doctrinally I refer back to the Supreme Court's decision in City of Ladew. While City of Ladew is a case about the use of signs on public property, excuse me, private property, the Supreme Court there still emphasized that when a town is regulating signage, it's not carrying signs, holding signs is not an ample alternative in many circumstances to being able to put a sign temporarily in the ground. The Supreme Court there used a number of really helpful practical examples as well, for example, individuals who are disabled. And then secondly, practically on this record, Mr. Hammond testified that when he has to hold signs, there's a greater risk that those signs might blow into traffic. So there is a, he has a safety concern and that when he's holding signs, he's not able to practically communicate in the same way with the people he's trying to share his message with. For example, if he's holding signs, he's not able to hand individuals tracks and things like that. So holding signs is a cost to him, a practical cost, and thus not an ample alternative. Thank you, Your Honors. Thank you, Ms. Mueller. Ms. Brody. Thank you, Your Honors. My name is Stephanie Brody. I represent Appalese. So the city asked this court to affirm the district court's denial of the preliminary injunction because Mr. Hammond failed to demonstrate a likelihood of success on any of these three constitutional challenges. As we just heard, he remains free to carry, wear, or wave the same signs in the same location. And four out of the five demonstrators did exactly that on the day in question with no city interference. This ordinance is content neutral, generally applicable. It bans any staking of a temporary sign in the public right-of-way. This actual language says no erection, and the city has always interpreted this as no staking it in the ground. Counsel, can I ask you about these encroachment exceptions? Is it your understanding that when these encroachment exceptions apply, that the people that own the restaurant or are attending the block parties, that they can stake signs into the ground? No, Your Honor. Reading these encroachment permits in detail, and I admit they are quite long, as adopted in many cities throughout our country. But I'll walk through a few of them and highlight some of the language that shows they don't contemplate erecting signs, therefore encroachment activities. But what about the argument that Mr. Mulker raises, which is that they are mentioned in Section 15 as an exception to the no sign provision, right? Absolutely. So why would it be an exception to the no sign provision if it has nothing to do with signs? Oh, it has to do with signs, but not the erection of a sign, which is what his intended conduct was. He can wear, arguably, if he holds a sign, wears the sign around him, is waving it, it is on his person. He has control over that sign. One of the other purposes in our ordinance for this ban is not only aesthetics, not only traffic safety, we also have the avoidance of uncontrolled use of signs and that faulty construction, things like that, and even the other one. So how does 1715E not deal with signs? Let me read you some of the specific provisions within it. So, for example, the restaurants. Let's talk about the banners. Okay, banners. Banners are, first of all, a temporary sign. That is in our temporary sign general definitions, which this Court can take judicial notice of any of our ordinances found throughout the sections under 201. So the banners specifically are signs, but it says, they must be state and local government or nonprofit to promote the arts, cultural activities, and tourism. And it says to install them on utility poles. Nothing says, and two per pole, nothing in there says you may stake it in the ground, actually. So when you look at the actual text, it does not say you may erect a sign. It says you can put two on a utility pole. And similarly, I do want to emphasize the restaurant one because sidewalk sales and the restaurant one, this is only in the BPR district. That's that special downtown district. We have a separate ordinance addressing temporary signs in the downtown special area. And moreover, it specifically says you will not put up signs. Those umbrellas that you have for over the dining, no lettering, no signs. What does it say you cannot put up signs? It says that in, let me put that up here. Pulling up my tiny text of the signs. Number, we're in the 17 section, and it's E, going down to, that's the merchandise. Sorry, they're very long. All the way down to regulations 5A. So I am in section F, sidewalk restaurant permit. Thank you. Section F. The sidewalk encroachment shall permit a food service established located in only the primary business district and shall comply with this section. I'm sorry. What number are we? 5A. An outdoor restaurant. Okay. Yeah. An outdoor restaurant is permitted only on sidewalks and approved areas. And it comes down to I, 4I. No signs, banners, or other like advertising shall be located in permit area unless in accordance with 1565 of this code and the restaurant may post a menu. And post is not erect. Those are different words. And it could mean more likely in the small downtown area where it goes street, sidewalk, building. You post the menu on the wall. It is not a license to block the public right-of-way and put up a sign. And further on that point, I would add the idea of when he's concerned about this being too broad, like why can't I put up a sign in the public right-of-way? Well, when you put up a sign and you are not managing it, it's not with on your person, that could become the speech of the city, and we are not allowed to do that. We cannot allow someone to erect a sign, walk away from it, leave it unattended because that could be construed on behalf of speech of the city. Whereas there's special exceptions for the cultural arts and tourism things when it's adopted and approved. Counsel, what evidence do you think the law requires you to put forth to justify the government's substantial interests? Thank you, Your Honor. In this case, the only evidence we need to deduce is common-sense evidence supporting the purposes set forth in our standards. Our Statement of Purpose Standards in 15-4-10-2. What basis are you relying on to say the common-sense evidence to justify your substantial interest is sufficient? Vagueness does not demand perfect clarity or precise guidance from Hedwood and Clare. It just needs this core of ascertainable meaning. Town of Grand Chute upheld the sign ban in the public right-of-way, and so did the one that the district court relied on, which is truly on all fours from the Western District of Washington, McClanahan, or City of Tumwater, said right away is sufficiently clear. And here, empirical evidence is simply not required. Town of Luce, in fact, upheld the part of the ban that was about the highway right-of-way sign. It even said, empirical proof and a linear regression analysis is not required for the city to demonstrate that valid interest. Luce butted up against private property. That 100-foot buffer zone had houses. Private property we treat drastically different than public property, in all case law and in our ordinances. Private property in Luce, if a house near a highway wanted to put up a for-sale sign, a garage sign, sale. So are you relying on common sense for both of the interests you put forth? Yes, all of the interests, including the other two that are set forth in our ordinance, the confusing use of signs, and even to protect property values. All of those are set forth in the statute, and this court can also take judicial notice of our ordinance interpretation guidelines. They both call for liberal construction, and they call for saying if there's a conflict, resolve it in favor of the more prohibitive ordinance. There cannot be a more clear ordinance than we have here that is challenging for temporary right-of-way signs. There's multiple definitions provided, even if you have to go outside the dictionary, which multiple cases, Town of Grand Chute and McClanahan said, you don't need to go outside the ordinary intelligence of the person to know. You can't put up a sign on private property. And it has been held that cities can go a long way towards entirely forbidding the posting of a public sign in a— sorry, of a private sign in the public right-of-way. That is an unqualified ban, and it is something that the city need not adduce empirical proof to prove. And additionally, the district court here did note that Mr. Hannum himself testified about some risk of danger of signs being around a roadway. And here you can defer to the trial court's interpretation of that testimony as a credibility decision and give it due credit. The public right-of-way, which is challenged here as vague, it's defined three different ways in the code. Which one of those definitions should control the interpretation of the no sign—temporaries or no sign section, and why? Thank you, Your Honor. First, all three give the same result. Ultimately, just as was testified to, it's public land owned by the city, and it's usually near a travel way. In particular, for example here, Giant Road is a four-lane divided highway, and from the center of it measures 100 feet up to the property line, so it's actually less than 100 feet to the property line of choices. And it has utility easement running on it, which is why the city attorney specifically was thinking of that statute, 1712-2, because when you stake metal on top of a giant utility line with electric wires, there is a risk and concern there. And it is a safer choice for the city to just have this blanket, clear, easy-to-follow standard, which is Mr. Lanzini and his five inspectors drive around the city enforcing code, and they pick up any signs they see in a public right-of-way space. But my question is more specific. Which definition in the code should we use to define public right-of-way? I submit that the easiest one to use, because it's right there in the text, when you cross-reference text, it's a sure sign that you should go check what that says. So the encroachment one should be used, which states streets, alleys, sidewalks, publicly owned common area. Publicly owned common area is a very clear, easy standard. It's right there in the cross-reference text. Anyone can click on it. It's even hyperlinked on the website. So you can click on it and find it. And the other definitions are compatible and support the simple understanding of publicly owned common area. And none of those encroachment permits allow for the erection of a sign there, which, again, is a matter of does this invite arbitrary enforcement, and it doesn't. The city has always interpreted it as only disallowing him from placing a sign in the ground, which is a clear, easy-to-understand rule. Ms. Brody, during the preliminary injunction hearing below, counsel for the city in argument characterized the encumbrances as an exception to the rule of erecting a sign. So this is on page 189. So it is a total ban for any signs to be erected in the right-of-way except that one exception. But what the plaintiff is attempting to do here is create additional exceptions to that rule that are not listed in 8A1 that only has one exception. So he seems to suggest that, in fact, the encumbrance exceptions do permit signs to be erected as exceptions to the general rule. But here you're disagreeing with that assessment. Is that correct? Correct. I think he was speaking generally about the ban. It says the word exception. Of course there's exceptions. These are encroachment exceptions. And when you read them in detail, none of them talk about erecting signs. They just don't. Okay, so along those lines then, if we could turn to the banner exception. Yes. Again, that's 1715E. And if we look at, gosh, the small text, I should say, E1B. Are you with me there? Does the authorized encroachment of a banner or the decoration shall comply with the following conditions? Yes. Okay. And you'll see there's many listed there. Hold on. And then go to 3, so B3, okay? Yes. B3B. Okay. I'm sorry, B3A. Let's go to C. Okay. Okay. It says there should be a minimum of 16 feet of clearance between the banner or declaration and the public right of way. Do you see that? Yes. What does that mean? It means exactly what you think. So one thing about these banners, remember, we have to be 50% residential. When he said, oh, why can't I do exactly what I'm doing where I'm doing it, you're in a different district. You're not in a residential zone. This is residential, and residential have that subsection 320 foot setback. It doesn't say the word private. Hold on. But this is – I'm confused because I thought this encumbrance was an exception to putting signs on the right of way. And here it says there needs to be a minimum of 16 feet between the banner and the right of way. How am I supposed to make sense of that? It's only in the – for the – if you look at A, the other requirements, so there's multiple requirements, it says installed on utility poles. Installed on utility poles. Nothing says you can stake it in the ground. It does say or other locations approved by the city, doesn't it? Has Mr. Hammond demonstrated that the city has ever approved a sign that was not removed from the public right of way? But isn't his point that the city could? I mean that under the ordinance the city could approve a banner based upon its content to be staked into the ground under the exception in 1715E. I would submit in closing that it cannot because the city has always enforced this consistently, even with respect to these permits. They only remove signs that are staked in the private right of way. You can carry, wear them, post them on some utility poles for certain conditions in certain environments. And it's not a license to disregard that general prohibition, which still governs, and none of the permits, they all have to do with either private property or specific encroachment activities. And I would submit that it is clear that they do not raise confusion over what he's trying to do, which is to stake it in the ground. If I can ask for my colleague's indulgence. The D in that same provision says the location of the proposed encroachment shall be within or bounded on at least one side by one of the following zoning districts and their list of zoning districts. Does the location that we're dealing with here, does that fall within any of those locations, do you know? It does not. We are in the, quote, outside BPR district. So it's not even bound by at least one of the following zone districts. Correct. If there are no further questions, I'll arrest my time. Thank you, Ms. Brody. Mr. Melker. Thank you, Your Honors. I have three brief points. First, returning to the aesthetic questions, common sense says that a banner can be just as ugly as a sign. What the Supreme Court and the Constitution demands is that a law be content neutral. And so aesthetics here, Your Honors, would only be a justification if the city's actual ordinance was, in fact, content neutral and not discriminatory. Because it's discriminatory, saying that some kinds of content are less pleasing to people than other kinds of content is a particularly egregious form of content discrimination. Secondly, opposing counsels ---- Mr. Melker, what I just heard from Ms. Brody is that that doesn't apply here, that the banner exception does not apply here in this case because the location here would fall outside that exception. How do you deal with that? Well, Your Honor, that's my second thing that I want to highlight, and this is a facial challenge to the ordinance. So I think the vagueness ---- But if your client fails on the as-applied challenge, then we don't even get to the facial challenge, right? Well, I think here, Your Honor, the fundamental problem is that my client, Mr. Hammond, could not understand the ordinance and thought it allowed his conduct, and that highlights that the ordinance on its face is vague. It's confusing. The ordinary reader can't understand what they can and cannot do. So I think to answer your question, whether or not this particular speech is within a BPR district or another kind of zoning district doesn't really fix the vagueness problem, which is that this law is allowing for some kinds of speech and not others. And it's doing it based on their content and in a way that the ordinary reader cannot understand. My time has expired. So I thank the Court. If I may make one final point, Your Honor. Go ahead. Just very briefly, opposing counsel has relied on this Court's ---- suggests that this Court's decision in loose is limited to private property as to the 100-foot ban, but having read Judge Easterbrook's decision in that case very carefully, I see no limitation in that decision to just private property. When he analyzed that 100-foot rule, it was in the context of people who wanted to display signs on public property on an overpass. Therefore, loose is best read as applying also to public property when the government seeks to infringe upon speech. Thank you, Your Honor. Thank you, Mr. Mulker. Thanks to both counsel. The Court will take the case under advisement."
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"stt_transcript": "Our last argument this morning is an Obisui v. Board of Regents of the University of Wisconsin Appeal Number 25-3143. Thank you, Your Honor. Just one second please. We'll let them get settled. Okay, now whenever you're ready, please. Thank you, Your Honor. My name is Mr. Bruce Fine and I'm representing the appellant in this case, Dr. Olachi Mezu-Ndubuisi. I may refer to her as Dr. Mezu if that's all right with the court. I'd like to start out with a couple of propositions that I think are relatively undisputed. I don't think there's any evidence on the timeliness issue that my client was maneuvering for some kind of tactical advantage. I don't think there's any evidence that the relatively short period beyond the 90-day statute of limitations for filing after a right-to-sue letter compromised any ability of the defendants to defend themselves. So let me go into what I believe are the justifications for finding equitable tolling in this case. So just to clarify, you agree that the lawsuit was not timely, that in order to find in favor of your client, we would have to find that equitable tolling applies? With regard to the University of Wisconsin, I don't, we wouldn't accept that. I'm sorry, you would or would not? Would not, for this reason, Your Honor. That issue turns on whether or not Dr. Mezu actually received notice of a right-to-sue letter either by email or by hard copy mail through the United States Postal Service. My client testified that she didn't receive any of those notices that purported were sent, and that once she actually did receive notice, which was later, I believe in December of 2023, her suit against the university was within a 90-day period. You don't, though, dispute the fact that she never informed the EEOC of her new address when she moved. Is that correct? The answer is yes, but not complete. She informed the United States Postal Service in 2022 in September, you need to forward all my mail to the Rochester address. And during the period before the EEOC purported to put it in the mail, she's receiving lots of forwarded mail. Now, it's true, the EEOC said we're supposed to inform us. It's an indirect way in which you can inform them, and as you well know, even though it's insinuated that if the EEOC sent the letter and put her old address directly on it, her new address, because it was informed of the new Rochester address, the USPS could still have misdelivered the letter. That happens occasionally to me. I get something that's a year late. We know that this can be... But that's different than if she had provided the address to the EEOC. The law makes clear that it's her obligation to update the EEOC with her change of address, not just the US Postal Service. You're correct as the statement. That's what her obligation was. We think that the issue was whether or not she actually received notice. And the point that I'm making, it's not dispositive in isolation, was that even if the EEOC addressed the letter to Dr. Mezu in Rochester, the Postal Service could still misdeliver it. Things get lost. Remember, this comes on the heel of COVID. There was a huge, I would say, disruption of mail because of the loss of employee time and whatever. Let's talk about the portal, which is a whole separate way that the EEOC notifies. That's how the UW defendants received the right to sue, correct? Well, we have a declaration from Dr. Mezu that she did not receive any notice through the portal. And that could be because there are spam filters, there are sometimes goes junk mail. It's happened occasionally to me in the last several years where courts have sent me documents and I didn't receive them because I went into junk mail. AI isn't flawless on how it organizes software for your computer. And if it doesn't recognize an email address, it sometimes misfires. And anyway, we believe, Your Honor, since this was a decision made on summary judgment, it would raise a factual issue. Did she, in fact, receive the notice by email? She, under oath, said, I did not receive it by email. That is true later on. She had her counsel, Dr. Ebay, and she did finally, through Freedom of Information Act, get a hard copy of the notice and the suit was brought within that 90-day period. Mr. Fein, just to complete the question I initially asked, because we got off track on this, as to the other defendant, Meritor, do you agree that the case against Meritor was not timely? We would have to find equitable tolling applies in order to prevail. Yes, I think that is correct, Your Honor. Although, do we do, I would underscore that that suit was brought initially in the Central District of California, which was dismissed without prejudice, within the 90-day window. And I think it's also relevant, Your Honor, that not only was it brought, they were served. Both defendants were served with process. It wasn't a case where limitations stopped just because under the federal rules, as you file, limitations are. They were actually served. Now, the judge then dismissed the case without prejudice and it was filed again in the right jurisdiction within 12 days. And I want to underscore, too, although it's true that the issue of transfer under 1631 of Title 28 was in press, I think the case law is relatively clear, including in this circuit, that there is an independent duty of a district judge, if it sees that a case could have been brought in a jurisdiction to transfer in the interest of justice. That wasn't done in this case. It's true we didn't ask for it, but I think this is an independent duty of the district judge to examine that option. Your client was represented by counsel, so they could have essentially moved to vacate the judgment and asked for a transfer. No, I agree, I agree. Right, so that didn't happen. So you're trying to put this on the district judge. No, Your Honor, I apologize, but the language of the statute in the case law is very clear. It says the district court shall transfer to another district where it could have been brought in the interest of justice. If asked. No, it doesn't say if asked, Your Honor. If you look at 28 U.S. Code 1631, not if asked. You don't have to do a motion. And the case law, I believe, is quite clear on that score. But we think that's one element. I don't want to be in fault finding and say judges have to be impressioned, but we're looking at the totality of circumstances here. And remember, the case was filed 12 days after the transfer. And there's no suggesting that we're form shopping, that there's any lack of diligence. But the problem is that the initial case in California was filed on day 89. No, it was filed on the 89th day. Correct. And I'm puzzled, Your Honor, at this idea that it's a demerit for a plaintiff to wait, you know, if their statute limitations could be a year, five years, unless you file at the earliest possible moment, you're somehow dilatory. The reason why you have statute is there are a lot of elements that go into deciding whether it's a lawsuit, because that's a big headache. And there's nothing that's untoward about waiting 89th day, 80th day, the 30th day, or even up to the 90th day. It's important that it be timely, because you're correct, you need to make sure that evidence is not lost, that there's no memories fade or anything like that. But there's no, I don't think that it's fair to say it's a fault of a plaintiff if you wait for the full period of the limitations. But the thing is, kind of, but you waited, but the plaintiff waited longer, right? So you have 89 days, and then assume for the purposes of argument that the California case does stay, does toll statute limitations, okay? There were still 12 additional days between the dismissal without prejudice of that case and the filing of the case here. And so that exceeds the 90 days, even assuming that tolling was involved. No, I understand. And so what's the explanation for those additional days? Because she was proceeding pro se in Wisconsin, and 12 days is really short in litigation experience. But she wasn't pro se in California. No, but she was pro se when she was in Wisconsin, because that was where the new case was filed. And 12 days is hardly, you know, a prolonged period. There wasn't any insinuation that this was done for the purpose of evasion to get some kind of strategic advantage. And as with regards to the 89 days, that was when 90 days you can take judicial notice. That is a very short limitations period in the whole regime. You're into your rebuttal, if you want to save a little bit of time. I'll save that. Thank you. Okay, thank you. Mr. Bibb. Good morning. Good morning. Thank you, and may it please the Court, Assistant Attorney General Aaron Bibb on behalf of the University of Wisconsin Defendants. 90 days is a short time. Five minutes is much shorter, so I'll be brief. I'm going to start, Your Honors, in a kind of unusual place, which is the point that Dr. Mezu and DeBese's initial brief was so underdeveloped as to waive any argument on appeal. Her argument was less than two pages long as regards the University Defendants, in larger than usual font size, and cited no case law whatsoever in the argument section. And that alone is enough to affirm the district court. In her reply, she does try to justify that initial brief. On page six of her reply brief, she does cite some case law, three cases in support of her position, but she misrepresents what these cases say. I'll take them one by one. These are quotes from the brief. United States v. Berkowitz, citation, declining to find waiver where the argument, though brief, was sufficiently developed for the court to address. In Berkowitz, the court expressly said that it was not forgiving the appellant's waiver. The next one is Chaconas v. City of Chicago, citation, addressing argument despite sparse briefing where the issue was clear. The case is not about waiver or sparse briefing. It says nothing about waiver or sparse briefing. And the third one is, as this court has observed, an imperfect argument is not the same as no argument, Bartlett v. Heibel. And the case says nothing on that point at all. Now, the brief does cite Berkowitz, which does address waiver, but that case explains precisely why she has waived her argument on appeal. That case does say a party urging us to reverse a district court's judgment has an obligation to argue why we should reverse that judgment and to cite appropriate authority to support that argument. That's page 1384 of that case. Dr. Mezu and DeBese has not done so here. Speaking of arguments brought up for the first time in the reply brief, I wanted to point out that there's an equitable tolling argument raised against the university defendants in the reply brief, not raised at all in the opening brief. That can be ignored under Kinder v. Marion County Prosecutor's Office, 132 F. 4th, 1005, page 1009. The substance of that argument, she says on page 11 that her trial counsel was actively pursuing information from the EEOC about the status of her UW charge. But she cites no evidence from the record to support the idea that her counsel was doing so during the 90 days following May 25th, which was the latest that the EEOC would have begun to run under constructive notice. She cites a declaration from her trial counsel on short appendix page 11. The trial counsel says she was, this is a quote, was in constant communication with the federal investigator from April 2023 to July 2023, during which she did not receive any information or correspondence regarding the UW complaint. But her trial counsel said that she didn't ask for any information about that university complaint until September 2023, well after the 90 days had run. She also says that the university should be faulted because of its conduct in the first lawsuit she filed in California. She says in the declaration on short appendix 13 that the university represented to the court that she should not have sued them because there was no right to sue letter. This is, sorry, that's in the brief. Apologies. The declaration said that the university falsely represented to the California court that they should not have been sued because there was no EEOC right to sue letter tendered by the plaintiff for the UW defendants. This misrepresents what happened in that court. The university was challenging jurisdiction and venue. It did not deny that there was a right to sue letter. It said that there was not one produced and said that even if there were a right to sue letter, the EEOC office, that even if the Los Angeles EEOC office had issued the right to sue letter, it would not have supported jurisdiction or venue in California. That's at trial court docket 72, pages 148 and 153. Briefly, I just wanted to address the point about findings of fact, determinations of fact. I think there's two ways to look at what the district court did here when it said that no as the district court said, there are just too many coincidences to believe. We have to believe that she didn't get, a juror would have to believe that she didn't receive the notice that the charge had been split, that she didn't receive the notice of the right to sue letter from the portal, and she didn't receive the letter. Or we can say that the district court said even if we take her at face value on the portal issue, we can find under St. Louis that she did not notify the EEOC and therefore we have constructive notice rather than actual notice. If there are no questions, thank you very much. Thank you, Mr. Fitt. Mr. Howe. Good morning. May it please the court. Brian Howe on behalf of UnityPoint Health Meritor, also known as Meritor Hospital Incorporated. The central point that I'd like to address is that an objectively unreasonable filing decision is not the type of diligent or extraordinary circumstance that would ordinarily support equitable tolling. This filing in the California district court was not objectively reasonable. It was not the type of wrong form mistake that a court such as the Threadgill case would allow to establish equitable tolling. Meritor Hospital is a Wisconsin hospital. There's no dispute in the case that all the challenge conduct occurred in the state of Wisconsin. There's no dispute that no acts, no circumstance whatsoever occurred in the state of California. The appellant's only explanation set forth in her briefs as to why this action was filed in California was that her lawyer worked there and that the EEOC had an office building there. Now, like I mentioned, the Threadgill case recognizes that a wrong court filing may, in certain circumstances, justify equitable tolling. However, there still needs to be good faith and there still needs to be diligence. The Brown case decided by this court is a good example of a wrong court filing which does not warrant tolling. In that case, the plaintiff argued that her erroneous but good faith filing in Illinois state court tolled the 90-day filing period because she had a reasonable legal basis for believing that Illinois offered an appropriate forum in which to bring her Title VII action. This court held that the plaintiff was on notice that she lacked a good faith basis upon which to believe that she could bring her case into that court. This court went on to find that the Brown plaintiff neither exercised great diligence nor demonstrated the due diligence which statutes of limitations are designed to engender. Such is the case here. Appellant had no reasonable basis whatsoever to bring this case in the state of California. There are no claim-specific facts which supply an objectively reasonable basis for personal jurisdiction in the state of California. And then, importantly, nowhere in the appellant's brief does she explain how personal jurisdiction or venue could possibly have been proper in the state of California. This isn't just my opinion. The Wisconsin District Court found that there was no plausible basis for personal jurisdiction in California. The California court found that there was no authority for appellant's assertions and dismissed for lack of personal jurisdiction. Importantly, this court has recognized that there could be grave consequences for not recognizing and addressing personal jurisdiction at the outset of civil litigation. A case, Coates v. Waddell, 796 F. 2nd, 981, addressed the transfer of venue statute, 28 U.S.C. 1406A, and addressed whether the court should transfer a case in the interest of justice. This court explained elementary prudence would have indicated to her lawyer that she must file a protective suit in Michigan because there was only a slight possibility of obtaining personal jurisdiction in Wisconsin over the defendants. The proper penalty for obvious mistakes that impose costs on opposing parties and on the judicial system is a heavy one. The court also states that we remind plaintiffs and their counsel that they must determine where the plaintiff can get personal jurisdiction over the defendant before, not after, the statute of limitations runs. Otherwise, they court disaster. That is what we have here. In this case, the reasons offered by appellant that personal jurisdiction is complex, that's not a sufficient reason. If it was, if the complexity of the rules of civil procedure and federal litigation could be a sufficient basis upon which to get equitable tolling, then any party in any case at any time could simply file a lawsuit somewhere by themselves several months and then say, oh, I'm sorry, I filed in the wrong jurisdiction. Let me refile it here. Now, that doesn't work. It can't work in a Title VII case where you only get 90 days to bring your lawsuit. And that 90-day period is short for a reason. The reason why it's short is because there are remedies that go along with the Title VII case, such as back pay, reinstatement, interest, etc. And when you're looking at those types of remedies, if the case drags out for too long, then the defendant has put it in unreasonable burden. So therefore, we have a 90-day short limitations period. I see that I have a red light here. Yes. Thank you, Mr. Howe. Mr. Fine, we'll give you a minute for rebuttal. Your Honor, we understand that limitations period are not optional. But equitable tolling is there when the purposes of limitation are not compromised. And it's not unreasonable. It at some point, line drawing. 12 days may be all right, but 120 days is not. I want to explain at least a little bit what are at least the arguable connections of California. It wasn't just plucked out of the sky. The EEOC, for whatever reasons, when the charge was filed in Wisconsin by Dr. Mesmer, transferred the case to Los Angeles. An EEOC investigator of Los Angeles made contacts, was communicating with counsel. Now, why Los Angeles had that connection? Maybe it's because there's a very large number of California students who are enrolled at EEOC. What do we do, counsel, with the Title VII venue provision, though? Your Honor, the court never addressed the venue, one way or the other, below. Because she was represented by counsel who should have read the statute to know that Title VII has pretty specific venue provisions. Yes, true enough. But all we have to say is the court addressed personal jurisdiction and didn't move on with regard to venue. And maybe if venue was an issue because personal jurisdiction was found, maybe they would have exercised the right under 1631 to transfer to Wisconsin, and then you never would have had this issue whatsoever. Okay. Thank you, Mr. Fine. Thanks to all counsel in the case, the court will take the case under advisement, and that concludes our"
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"stt_transcript": "The next case for argument this morning is Appeal No. 24-3343 and 25-1002, United States v. Jordan v. Howard. Good morning. Good morning. May it please the Court. Elliot Laughton on behalf of Emmanuel Howard in arguing on behalf of Evander Jordan. This appeal presents two issues, one a Fourth Amendment standing issue on behalf of Mr. Howard and a sufficiency of the evidence challenge on just two counts out of 15 as it relates to both. On the Fourth Amendment issue, I think it helps to put ourselves in a familiar situation, which is one where all of us have experienced. We've gone to Thanksgiving dinner at our parent's place or at a child's place or a relative's place, and while we have that meal, we have an expectation of privacy when we're in that home and visiting that home. That is analogous to the situation that Mr. Howard was in. It's analogous here because if you're having Thanksgiving at a family home, you've lived there on Thanksgiving Day when you have that expectation of privacy. And here, at the time the search was conducted, the district court found that he wasn't living there. In fact, he admitted he hadn't stayed there before then. Where I'd press back against that is that the host of the meal, and here his mother, had an expectation of privacy. I mean, it was her new home. She had already signed the lease. But she can't assert it on behalf of him. No, she can assert it on behalf of him. But when a leaseholder, when a homeowner invites someone into their home, when there's a familial relationship, a long-standing relationship, and you're breaking bread together, that guest has Fourth Amendment standing. And that's what the Supreme Court's decision in Olson teaches. Did you argue this social guest theory of standing before the district court? Yes. In the district court, the judge ruled that there was no standing. That's a different question. The judge ruled there was no standing, but did your client before that judge argue this social guest theory of standing? Because it looked to me like the argument was, well, he's going to live there with his mother, and therefore he has an expectation of privacy, not that he's a social guest of his mother. I believe that the argument was developed below and that it was preserved. And that while the primary focus may have been on his relationship to the home, that was in large part based on the district court's overemphasis on the lease, which, as Byrd teaches, was a legally erroneous analysis. But the court didn't just rely on the lease. The court relied on, for example, the mother's own statement and signed document that she was permitting four people to live there as well, and your client was not one of those. So the district court looked at the totality of the evidence. I would agree with you that the district court looked at the totality. I would push back against the notion that the district court really looked at the mother's affidavit because I think that was not given the weight that it deserved. But the court did address it and found that it wasn't credible because she had written in this document when she signed the lease that there were only four people who were allowed to come in, and your client wasn't one of those, which undermined some of the statements in the affidavit, as the district court found. The specifics of the affidavit are important, and I don't want to re-litigate that. I think that it says that she always expected her son, Emmanuel, to live with her, and that had always been their situation. As you know, we'd have to find the district court's findings clearly erroneous. Right, which is why I think that there's a narrow, easy off-ramp for this court to not even get into clearly erroneous findings, which is that— Before you say that, Mr. Laffitt, I want to confirm, are you challenging the district court's factual findings? Because it didn't seem to me from your opening brief that you were. You quibbled with some of the findings in your reply brief, but I did not think that the basis of your appeal was challenging the district court's factual findings. Is that fair? I think that there's a narrower ruling where this court doesn't even need to get into that. I understand there's a narrower ruling. I'm just trying to find out, for purposes of completeness, are you challenging the district court's factual findings from the suppression ruling? In terms of how the district court handled the photographs, absolutely. And I point to the reply brief, and this was in response to how the government presented those facts. So are you challenging the district court's factual findings as clearly erroneous? Yes. Okay. Counsel, I think that with regard to the social guest cases, it typically seems to me in those cases there's kind of a history of not only the social relationship, but there's a history of the guest visiting that precise location. And so you're looking at, I think, was it green? I mean, there are cases where people had been there before, they're familiar with the place, they barbecued there before, et cetera, et cetera. But here, it's a new place. And kind of picking the theme from what Judge St. Eve was referring to, how are we to weigh or think about the fact that there is no history of Mr. Howard visiting this particular place? So I think what your question, Judge Lee, is pushing at is this idea of how do we treat a new home or a new apartment, which for sure is tougher. But the Fourth Amendment doesn't distinguish between an old home that someone's owned for 20, 30 years or a college student who rents a new apartment and moves every year. But here we're talking about a place where she hadn't even moved yet, right? So it wasn't entirely furnished, for sure. They ate dinner there. There is, in some of the photos, pictures of a few bags there. They had started the moving process. I think there's a real question as to whether or not they ate dinner and whether the district court found that. There was an empty pizza box, but none of the officers saw them carry that in, saw them eating. I think there was some question about that. Because they were there for hours before the officers arrived. The pizza boxes didn't just magically appear. And so I think the natural inference there is that they ate dinner. And that's something that all of us do. It was somewhat joking, but it's also a true trope that when people buy— But I don't think the evidence supported that they had been there for hours. And I don't mean to derail you from Judge Lee's questions, but one of the officers testified that they saw Howard and his mom go inside, leaving a third person in the car with the engine running. That doesn't support that they were there for hours. I would need to double-check the exact record on that. But the pizza boxes were there. And to the extent that that may be right, Judge Saney, that would further the notion, Judge Lee, that they had previously been there, that his mom was establishing this home as the new residence, as one does. You don't bring all of your furniture the very first time you move. And especially also recognizing the social circumstances here. This is a family that does not have the sort of means that many of us are used to. They're in transition. Their stuff is in storage. They're staying with aunt and grandma. It's not a traditional, here's the huge moving van, and we're in all at once. How would you articulate the rule we should apply under your social guest theory for standing based on that? I think the court looks exactly at Olson. And to the extent you want to build on that, Justice Kennedy's concurrence in Carter, I think, draws a clear line that social guests have an expectation of privacy. And that is an easy rule for this court to draw upon. I recognize there's a whole other issue, and I need to argue on behalf of Mr. Jordan as well. If there are no immediate questions on Stan Am, I want to touch on the carjacking and sufficiency of the evidence as well. Ultimately on that, on those two counts, on the offense of the carjacking, the government had a one assailant problem. And when it came time to discuss the jury instructions, the government specifically, the prosecutor specifically highlighted to the district judge, we need Pinkerton here because we have a one assailant problem. And there was then pushback because of how the case was indicted. The government then was given the opportunity to research whether they could proceed with their Pinkerton theory. They did not come up with that research, and so they withdrew it. But Pinkerton was the solution to address the carjacking because the carjacking was unlike the other five robberies. And when you step back and look at the trial as a whole and what was really going on, the government cared far more about those five other robberies and the accompanying 924Cs than they did about the carjacking. Eating and abetting get the government there, which was clearly charged. There was an instruction given on eating and abetting. Why isn't that sufficient? So Judge Sinead, it was legally available, but the government never pressed it. And this is where the Supreme Court has said just because a legal theory is available, the government still has to present that theory to the jury. They can't present one theory and then go up on appeal, salvage the conviction based on a theory that wasn't presented to the jury below. But it was presented. The government argued it in its closing statement, correct? No, Judge Mulder, and I would push back against that. The eating and abetting theory was not argued by the government? No. So if you look at the initial closing, they very clearly and explicitly touch on eating and abetting as it related to the five robbery counts, 2, 4, 6, 10, and 12, and talked about how one guy was the gunman, one guy was the bagman. Then they moved to count eight, which was the carjacking. And there they didn't talk about eating and abetting. They didn't talk about accomplice liability. And then that's what prompted both defense lawyers in their rebuttal to say, oh, wait a second, on that count, the government's asking you to guess. And they put the government on notice of this evidentiary problem that had been lurking since the Pinkerton. What about their rebuttal argument? And so then it comes to the rebuttal. And the government in the rebuttal doesn't address it at all specifically. And its final parting statement, which may be what you're thinking of, Judge Maldonado, is that they offer a generic boilerplate, you can find them guilty on eating and abetting. And our position would be if that is enough to preserve the theory, that effectively undermines what the Supreme Court has said in Ciminelli, McCormick, et cetera. A prosecutor could try the case on one theory, tack on boilerplate language at the very end as one of the final things they say during their rebuttal, and then that would preserve an unpresented theory on appeal. How would you distinguish this case from our opinion in United States versus Ribadello-Delegatio, where something very similar happened? I apologize. I'm not familiar with that case. Okay, that's fair. I don't think the government presented it, and if they did, I apologize. We did really what the government has argued here. We affirmed a conviction under an eating and abetting theory, even though it wasn't the focus of the government's presentation below. So what makes this case more difficult, and what I'm guessing wasn't the case there, is that this is a multi-defendant, sprawling indicted case, 15 counts. And the presentation of each one, of each count, bears on how this court reviews it. And that messiness, that's what makes this tricky. And it's also why we're not pressing the sufficiency of the evidence on the other 13 counts. This was the one spot where the government did not carry its burden and effectively told the jury to guess. I see I'm well into my rebuttal. I reserve the remainder. Okay, of course. Thank you. Mr. Kinestra. May it please the Court. Good morning, Your Honors. Jeff Kinestra on behalf of the United States. First, Defendant Howard failed to meet his burden of establishing an expectation of privacy in this vacant apartment. And second, the evidence was more than sufficient to establish that both defendants took part in the carjacking, just as they did in all 10 of the robberies at issue. Now, as with the motion to suppress, the burden falls solely on the defendant to establish that he personally has an expectation of privacy in the premises that were searched at the time they were searched. The defendant really makes very little effort at all to ground his arguments on appeal and the findings that this report made, and he hasn't shown that any of those findings were clearly erroneous. Those findings included not only that he was living somewhere else, but also that he had no possessions here, had never spent the night there, was not in the process of moving, and, in fact, did not have permission to be living there at the time. None of those findings were clearly erroneous, and based on those findings, the defendant lacked a personal expectation of privacy in this premises. What about the social guest theory? To your question to opposing counsel, that was not presented to the district court, and not only is it not supported by the facts, it's squarely refuted by the record. Judge St. Evie, your recollection of the record is correct. Officer Reeves testified that the officers watched as this defendant and his mother arrived in a car and got out of that car that remained running with someone inside of it and went up to this apartment. The officers at that point secured the premises because they were about to serve a search warrant there. That's at Trials Transfer at page 762. The defendant's mother explained to the officers that night on recorded body camera footage exactly what they were doing there. They were there not to eat pizza. They were there because they had been notified that the defendant's younger brother, Malachi, had been arrested for a separate series of robberies that he committed, and so they were there because they wanted to see what evidence the defendant's brother had in this apartment. So they were not eating pizza there. This was not a social visit. Their presence had nothing to do with whether the defendant was or ever in the future would be living there. They were there for the same reason as the officers, which was to find out what evidence the defendant's brother may have had in that apartment. That's captured at 12 to 15 minutes of the Griffin body camera footage, which was Trial Exhibit 42. It's also captured in the Reeves body camera footage, which the district court watched in preparation for the suppression hearing. And, of course, the defendant has the burden, and he never testified that he was there eating pizza. He never testified that he was there for social reasons, and so not only is this argument... This argument simply wasn't factually presented to the district court. The argument before the district court, as Your Honor noted, was that he had an expectation of privacy because he was already moving in, because he had possessions there, and because he had permission to be living there at the time. The district court found that those arguments were factually incorrect, and therefore the defendant's claim failed. The defendant suggests here today that he's challenging the court's factual findings. He made brief reference to the pictures. The officer squarely testified at the suppression hearing, that's at pages 59 to 60 and 63 to 64, that the pictures he took captured every room and every closet in the apartment. What he explained was that he began by taking overall shots, and that those overall shots captured every closet, every room in the apartment, and that after that he was looking basically at what the other detectives told him to take pictures of. But he had begun by taking these overall shots, which showed every room and every closet, and the district court didn't clearly err in characterizing those pictures as comprehensive, as exhaustive. They showed that the defendant did not have possessions there. The only item of clothing was a child-sized pair of pants, which did not belong to the defendant. So basically the defendant's argument here, or his claim in the district court, failed on its facts. His attempt to shift to a social guest theory, besides being brand new really in the reply brief, is I think legally incorrect as well. He relies on a single justice concurrence in Carter. But as this court itself has recognized, Olson, where the Supreme Court recognized an expectation of privacy by overnight guests, depended in large part on the status of an overnight guest and the expectation of privacy that accompanies that sort of stay, that's simply absent here where another person is simply visiting a vacant apartment. This is much more comparable to a situation in which the defendant is simply visiting an empty storage unit that his mother had rented. Certainly much more comparable to that than the Thanksgiving dinner sort of scenario. No one was living at this premises at the time. The defendant certainly wasn't living there. The defendant's argument that he always lived with his mother just cuts against standing here, because the defendant's mother in her own declaration acknowledged that even nine days after the incident here, she still was not living there and she still had not begun moving in. And what her declaration said is they were expected to live with her at that apartment. So that means that's just further support for the proposition that they didn't have permission to be living there at that time. If he always lived with his mother and his mother was living somewhere else, he was not living there himself. And that's exactly what the district court found. As to the lease agreement, as Your Honor noted, the district court did not view it in isolation and give it dispositive weight. The court appropriately considered it among all the evidence that bore for or against an expectation of privacy. And it was relevant here not only for its legal effect, because it did not give the defendant any legal or possessory interest, but also because it shows that his mother chose not to include the defendant among the people who would be permitted to live there. The lease itself included six blanks in which to write the names of all the residents. It stated that those individuals, and in bold, no others would be permitted to live there. And the defendant's mother wrote four names, including the defendant's 18-year-old sister and his younger brothers, and she didn't identify the defendant. So that provides direct support for the district court's conclusion that, in fact, the defendant did not have permission to be living at that premises at the time. I'd be happy to answer any other questions Your Honors might have on standing. Concerning the sufficiency of the evidence, I'd note at the outset is it government's position that you need the aiding and abetting statute to prevail here, or that there's sufficient evidence to find both defendants directly liable? We certainly don't need it as to Defendant Howard. The evidence squarely supported he was the gunman on this instance, just like he was with all ten robberies. A closer question perhaps is to Jordan. I think our argument never was that Jordan himself was the gunman. Our argument was that both defendants participated in all ten robberies, that even if the eyewitness only put one defendant there, the surrounding evidence as a whole showed that both defendants were involved in this robbery, just as they were in all ten. The location data showed that they were traveling together, that Jordan was therefore at the scene of this carjacking. He was there to provide assistance. So really the government's theory as to Jordan is aiding and abetting. Counsel has argued on behalf of Jordan that you didn't argue that before the jury. What supports that that was one of the government's theories before the jury? Sure. First and foremost is the jury instructions themselves. The defendant has conceded that the jury was appropriately and correctly instructed on aiding and abetting, and instructions that applied to all of the robberies, including the carjacking. And the aiding and abetting instruction actually specifically named the carjacking counts. That's the principal way in which the government presents a legal theory to the jury. The defendant also doesn't dispute that the evidence sufficed to prove the defendant's guilty on aiding and abetting theories. And so his argument then really just depends on the granularity of the government's closing argument, which is not the inquiry at all. The government not only sought and obtained jury instructions on this issue, it expressly invoked them, and it did so as to, quote, all counts. During the government's closing arguments, it walked rather methodically through every single one of the ten robberies, over about 15 transcript pages, showing all the evidence that showed that both defendants participated in every single one of those. And then to take the conclusion of that discussion, the government said, I would also invite your attention to the aiding and abetting instruction that the court has given to you, and ask you to consider that in deciding whether the defendants are guilty on all counts. And then at the end of the government's closing arguments, the government made that point very clear, saying that whether they did it themselves or together, joint venture, aided and abetted, it doesn't matter. They aided and abetted each other, and therefore they are guilty of all counts. Beyond that, the defendant's argument is essentially a challenge not to the sufficiency of the evidence, but to the comprehensiveness or granularity of the government's closing arguments, which just simply isn't necessary. In fact, the government has the rights under Rule 29.1 to waive closing arguments altogether. That wouldn't mean that the district court is bound to grant Rule 29 motion. Again, the principle way in which the government presents a theory to the jury is through the jury instructions. The government expressly invoked those instructions during the closing arguments. It did so as to all counts, and so that suffices to reject their argument, which of course is brand new for the purposes of appeal. I'd be happy to answer any questions that your honors have about preservation, but otherwise the government would ask this court to affirm. Counsel, I'd be remiss if I didn't mention my observation about the way this case was indicted. During my years in district court and my years here, I don't think I've seen an indictment where each separate robbery had a corresponding 924C claim. I think by doing so, that basically set the case on the track that it is now. I wonder in your experience whether you've seen or encountered an indictment like this, and whether I'm just not seeing all the indictments because I don't. Sure. I can't name a case for your honor as I stand here. I apologize for that. I can assure you that the government thought very long and hard about what the appropriate charges were in this case. We understand that it's a very harsh sentence and that it's that way appropriately. Well, it also just ties the district court's hands with regard to sentencing, sentencing discretion, etc., etc., right? In part. I mean, largely that's, I mean, of course the government charged the case, but that comes about because of the defendant's own conduct. For Jordan, for example, he was on supervised release for a prior 924C conviction, and then he goes and leads this 10 robbery. No, no, I understand, and the government has the right and the authority to do that. I recognize that. But I'm just glad that you're representing to us that the government thought long and hard about the way it charged this case, and I hope in future cases like this that the government continues to think hard about how it charges 924C counts. Yeah, I very much appreciate your honor's thoughts that will be heard in our office, and we did certainly give that thought here, understanding that that put it on a track to a trial and that that did affect the way that the case was litigated. I have one more question for you. Sure. Our Rule 29 standard. We have some case law that talks about a general Rule 29 versus something more specific and that general ends up being, I'd say, more favorable potentially to defendants than specific. What's the government's position on what the standard should be for Rule 29? What are guiding rule as this general versus more specific? Right. The government's position is that Rule 29 is not unique among the entire universe of the Federal Rules of Criminal Procedure, that here, just like anywhere else, the defendant at least has to put the district court on notice of the grounds for his motion. That comes directly from Rule 47B, which says that a motion must both state the relief sought and identify the grounds for that relief. This case is really an excellent illustration of how the contrary view just gets the entire litigation process upside down. I think this is the very form of sandbagging that the rules of preservation exist to prevent, because the defendants not only failed to present any grounds to the district court, they affirmatively withheld any arguments when the district court invited them to supplement and to help it. So essentially their argument is that even without being pointed to any shortcoming, a district court has to march element by element, count by count, defendant by defendant, theory through theory, through every count in the indictment, without any assistance from the defendant. That, I think, doesn't give due respect to the district courts. It doesn't give due respect to this court. It makes this one of first view and not review. It deprives this court of the assistance of the district court's view, which is, I think, particularly important in this sort of case where, again, his argument on the merits is not about the sufficiency of the evidence. It's about what was presented to the jury. No one would have been better positioned to opine on that than the district court, who had a front row seat to the entire proceedings, instructed the jury, heard the closing arguments to say, I understand that this was a valid basis on which the defendant could have returned the conviction, or that the jury could have returned the conviction. So the government's position is that in this circumstance, just like any others, the defendant at least has to put the district court on notice. It's not a magic words requirement, but it will depend on context, and the defendant simply didn't do that here. Is our approach, does it conflict at all with any Supreme Court precedent? The Supreme Court, to my knowledge, has not spoken directly to this issue. I know it does conflict squarely with the Third Circuit's recent decision in Abrams. There's other cases that this court has cited in its recent opinions, like Rivers and others, a concurrence by Judge Oldham in the Fifth Circuit. So this issue is percolating in the circuits. I think it's an appropriate case for this court to course correct. I want to get back to a factual issue, the record. Much is made of the lease. I could not find the lease on the record. I know it's undisputed that Mr. Howard was not listed on one of those six lines, but who were the people on the lease? Who were the persons? I don't want to read their names because many of them are minors, but it was the defendant's sister, his two younger brothers, and a younger cousin. So they were all minors? No. The defendant's sister was 18. Her age was listed as 18. Okay. And the reason why I'm asking is many landlords perhaps would not want someone with a criminal record living there, so I don't think that necessarily whether someone is listed on the lease, it's dispositive of whether they were going to live there, right? Because Mr. Howard and his brother Malachi were not listed, but the mother asserts in her affidavit that they were going to live there, correct? The defendant's brother Malachi was listed on the lease. He was. He was. And I apologize that it's not on the electronic docket. It is Exhibit 1, which would be in the district court's custody. It was admitted in evidence at the suppression hearing. You've got to get those on to CMUCF for us. I very much apologize. That's my oversight. Yes. And I take your point that it might not be dispositive of isolation, but it doesn't show that the district court clearly erred in giving the significance that it did. Okay. Thank you. Thank you. Mr. Laughrend, you have a little bit of time left. A few quick points on the carjacking. The government, in response to your question, Judge Same, is now asking this court to step into the jury's shoes and assign direct liability when we don't know how the jury ruled. Sure, in the government's view, Howard was the one who did it, but the jury very well could have thought that it was Jordan who did it when the victim did not see a tattoo on the forehead. And that is why that the government has not carried its burden, even viewing the evidence in the light most favorable to it. The government also brings up how we're sandbagging on these Rule 29 motions. And it's ironic to say we're sandbagging when the government talked about Pinkerton and then withdrew that instruction. That was the opportune moment to say, you know what, Judge Darrow, we're okay because we have accomplice liability. It's only now on appeal that they're really dressing up this accomplice theory that could have easily been presented below, but it wasn't. And finally, Judge Leidy, your question, which is one that sounds a little bit more inequity. I can represent that Mr. Howard wanted to plead, but the draconian way it was charged was it was untenable. And he looked to figure out, come to any sort of deal, because he was 20 years old. He was a kid when he committed this offense, and the government would not budge. And it's par for the course with how the AUSA, who has since left the office, handles these cases. And it was incredibly frustrating that we couldn't come to any sort of deal other than plead exactly what was indicted, which was a mandatory minimum of 45 years. I see I'm out of time. If the court has any further questions on either issue, I'd be happy to answer. Otherwise, we'd stand on our briefs. Okay, thank you. Thanks to both counsel. The court will take the case under advisement."
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"stt_transcript": "Our next case for oral argument is United States v. Lewis, appeal number 25-2365. Welcome back. Good morning and may it please the court, Elliot Louthan on behalf of Jeremy Lewis. This appeal concerns a drug conspiracy in the plea colloquy context. What a district court must explain to comply with Rule 11. On the first issue at the outset when we talk about the factual basis, I think the overarching principle to bear in mind is that one-time assistance does not necessarily equate to conspiratorial agreement. And when a defendant starts out the entire change of plea hearing with the response, do my answers even matter? That is precisely when the district court needs to be sure to slow down and make sure that every aspect of Rule 11 is followed, especially the factual basis per Rule 11b-3 when it's as thin as this factual basis was. Mr. Louthan, can I clarify something please? You make a series of arguments in your opening brief about the conspiracy itself, including kind of a buyer-seller argument about a single sale and that didn't know all the members of the conspiracy and arguments about being merely present, not part of the conspiracy. Are you saying that the district court had an obligation to explain all of those elements of conspiracy to your client? Or are you saying that the factual basis that was provided wasn't sufficient for conspiracy? Can you just clarify please the scope of your argument and why you were challenging these really legal aspects of the conspiracy law that I don't think a court has an obligation to explain? Absolutely, Judge Haney. So to be clear, I would separate the two issues. You have b-3, the factual basis issue where the elements in nature is not at issue. And then the second issue, the b-1g issue where the nature is at issue. And on that, we'll pivot back to the factual basis. But the claim there is very narrow and straightforward. It's did the district court explain the third determination of a statutory quantity? And we can get back to that. But in terms of the factual basis, and to answer your question, I think the district court has an obligation to ensure that whatever factual basis is provided, we have three district court, former defendant to explain in their own words. Sometimes they ask the government to just read the plea agreement if there is one. Sometimes the defense counsel reads the plea agreement. So there's no specific way in which a district court has to comply procedurally with b-3. But what the district court does have to do is ensure that however it's described, that that factual basis suffices in terms of whatever the offense is. And to the point of Gallaudet, drug conspiracies are messy and they're murky terrain. I mean, look no further than this court's en banc decision in Page. We don't have a buyer-seller here, but conspiracies are tough. And that was the takeaway from Gallaudet. And given how thin our client's role was in the drug transaction here, a singular drug transaction, I think that our position is that the district court should have explored the factual inquiry a little bit more. There's nothing preventing the judge from asking a few questions like, Mr. Lewis, what did you discuss with Mr. Johnson beforehand? What was discussed during the car ride? But the law doesn't require that. Certainly the court could, but there's nothing that mandates that. And Gallaudet is really different there. I just want to put that up front. It was clear in Gallaudet that he was confused over the charge, and they were using legal statements like conspiracy, and he was very confused over the charge, and even the factual basis didn't appear to understand things. Whereas here, it seems like the reluctance from your client was because he wasn't happy that he was going to end up with so much more time than his co-defendants. I would add, I would augment that, Judge Samian, that there was more to it when even during the factual basis, he asked to clarify and narrow his involvement. And throughout the plea colloquy, time and again, he's pausing to confer with his lawyer. And so I don't think it's fair to say that the only hesitation or reluctance that he had was the sentencing disparity. I think the record fairly read reflects more than that. And ultimately, to your point of, well, Gallaudet concerns something different. The foundational legal requirement is the same. That's B3, Rule 11, B3. And of course, not every case is going to be the exact same. Gallaudet is applying that principle in, I would say, pretty similar circumstances. For sure, not perfectly overlapping, but those circles overlap to a large extent, and that's why it's most on point here. And I'm almost positive it's the same district, Judge. And so the lesson to take away from Gallaudet was to tap the brake and slow down. Why aren't the facts in the plea agreement sufficient? Because you have the statement of Varela that, look for my drivers, and the car pulls up. I mean, we all know the facts, right? The CI gets in, calls Varela, and Lewis is there listening to the whole thing. The CI once confirms the money, gives the money, Lewis gives him the drugs. Why isn't that enough? That's exactly Ortega, Judge Lee, where- Isn't Ortega, though, the- Well, go ahead. One-time assistance does not necessarily equate to agreement. You can want, I think, a typical judge pose or fashion, says you can want an enterprise to succeed, but that does not necessarily mean you agree to join the conspiracy. And so at the end of the day, maybe he did join, but the district court should have inquired more. And I recognize that there's a second issue here, and that's, I think, an alternative- Before you get to the second, why would Ortega even apply here? Because there the court was reviewing whether a jury verdict was inconsistent. So different standard of review, different issue, and the court ultimately didn't say that a one-time assistance can never lead to a conspiracy charge, which is what it sounds like you're advocating for. No, to be clear, that's not what I'm advocating for. It's not a never situation. It may be a could with more context. I mean, to be sure, Ortega arises in different circumstances. I'm not saying it controls. It illustrates, it colors in how when you have scant evidence of agreement, that does not necessarily mean that the defendant joined the conspiracy. And it'd be a different story if the government had charged accomplice liability on a drug charge. But that's where we have to appeal, or we have to take the case as the drug conspiracy. On the second issue, on the B1G issue, if the court thinks that the factual basis issue is too messy, the B1G issue provides a wholly independent reason to reverse. And that is that the district court did not explain to Mr. Lewis that he had a Sixth Amendment right to have a jury of his peers make a finding that the statutory drug quantity was proven beyond a jury. Our instructions reflect that. That's the core holding of the lien. I see I'm into my rebuttal time. There are no immediate questions on that. I'd be happy to answer them. Otherwise, I'd reserve the remainder of my time. Okay, thank you. Thank you. Good morning. Good morning. Brian Reitz for the United States. The Rule 11 plea colloquy was sufficient here. The factual basis clearly established a conspiracy. Mr. Lewis has been given an opening reply brief and multiple questions from this court and still not been able to elucidate why this was not a conspiracy. And if we just look at the facts, it almost necessarily was. Mr. Lewis agreed to travel across multiple states, went to a parking lot knowing it was a drug deal. During the drug deal, coordinated with Mr. Johnson to provide the buyer with drugs. In other words, Mr. Johnson accepted the money and Mr. Lewis handed over the drugs. The government is at a loss as to how that couldn't have come about without an agreement because such cooperation coordination necessarily requires an agreement. And we know that it did because Mr. Lewis pleaded guilty and has said that it was an agreement. So Judge St. Evie said this case was much different than Gallaudet, and of course it was. In Gallaudet, Mr. Gallaudet was confused about the agreement, was never told the conspiracy required an agreement. And then under this court's prior law, the circumstantial evidence did not suffice to show an agreement under buyer-seller. None of those circumstances here are true here. The judge told Mr. Lewis that agreement was necessary. Mr. Lewis never expressed any confusion about the agreement. And then the facts themselves are sufficient to show an agreement because buyer-seller cannot come into play because both Mr. Johnson and Mr. Lewis were sellers, not buyers. Mr. Lewis here relies on Ortega. I think a couple points on Ortega. First, Ortega really doesn't say anything about when a conspiracy is or is not sufficient. It was a hung jury. This wasn't an acquittal or certainly a reversal of the conviction. If we step back, I guess we're referring to the prior argument, the government doesn't even have to charge aiding and abetting. So if Mr. Lewis's argument is that he only aided and abetted a conspiracy, so be it. He's equally liable as the principal. The sentence is exactly the same. So this is why he can't show a reasonable probability that he would have gone to trial because no attorney would have advised him to do so, to get the same responsibility. And if the court has no questions on the second issue, I would just simply put that the judge did explain to Mr. Lewis that the government had to prove beyond a reasonable doubt the drug quantity that was in the indictment, which Mr. Lewis agreed that he read. It's also in the plea agreement at paragraph three on docket 87. And this court under Robinson blessed, I think, even a lesser Rule 11 colloquy. And I don't know how Mr. Lewis can overcome Robinson because like Robinson, Mr. Lewis was explaining the indictment, the plea agreement, and the Rule 11 colloquy that the drug quantity had to be proven beyond a reasonable doubt. We'd ask the court to confirm. Thank you, Mr. Wright. Mr. Laffin, you have a bit of time for rebuttal. I'd like to focus on the second issue and the nature of the charges. This court's decision in Saunders shows why that third determination matters and goes to a jury. It wasn't enough that the district court here said the conspiracy involved 500 grams or more of meth. Because even if a jury found that fact, the jury still has to make an independent determination, defendant by defendant here for Mr. Lewis, as to whether the government had proved beyond a reasonable doubt the threshold of 500 grams or more, or there would have been alternative instructions for 50 to 500 and zero to 50. The government's response on this issue, really the thrust of it is a prejudice. It's plain air did this affect his substantial rights? Ultimately, there is a reasonable probability that he would have gone to trial. What's your strongest evidence of that? As you know, we have to look at what was said during the time of the guilty plea. What's your strongest evidence in this record that he would have proceeded to trial? The combination of him starting out, do my answers even matter? Him pausing seven times, him clarifying the factual basis, him that he had an originally scheduled plea hearing. What I would submit to you, Judge Niem, is that if this sort of plea colloquy and the reluctance that is strewn about it is not enough, then this court is hard pressed to ever find that a defendant has shown a reasonable probability in a Rule 11 context. Ultimately, Rule 11 does have some significance as it independently applies to the judge. That's the amount of time the court has to know for the questions we asked to reverse. Thank you. Thanks to both counsel in the case. The case will be taken under advisement."
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"stt_transcript": "425-0779 W.C. Joyce Carpenter, surviving spouse of Aaron Carpenter, deceased, Appalee, by Todd Strong, v. Illinois State Treasurer, as ex officio, custodian of the Injured Workers Benefit Fund, appellant by Samantha Sherman. Good morning, and may it please the Court. Assistant Attorney General Samantha Sherman, on behalf of the Illinois State Treasurer, as ex officio, custodian of the Injured Workers Benefit Fund. The commission correctly decided that plaintiff proved that she was entitled only to an award against the respondent employer, G4, and not to an award against the Injured Workers Benefit Fund as well. To start, plaintiff does not dispute that the claimant in an adjustment of claim proceeding bears the burden to prove by preponderance of the evidence the necessary elements which permit an award. Nor does she dispute that this rule applies to a claimant in an adjustment of claim proceeding seeking an award against the fund. And she likewise does not dispute that a claimant is entitled to an award against the fund only if the employer has failed to provide coverage as required under the Illinois Workers Compensation Act. These undisputed premises compel the conclusion that a claimant in an adjustment of claim proceeding bears the burden of proving by preponderance of the evidence that the employer failed to provide workers' compensation coverage on the date of injury in order to obtain a final award of benefits against the fund under Section 4D of the Act. The commission's conclusion that plaintiff did not carry that burden here was not against the manifest weight of the evidence. No witness testified as to G4's compensation coverage status at the arbitration hearing, nor did plaintiff submit any exhibits bearing on this issue. Plaintiff tries to make up for this lack of evidence by relying on a notice sent by the compliance division of the commission nine years before the arbitration hearing. But that notice is irrelevant here because Carpenter never mentioned nor presented evidence of that notice at the arbitration hearing. Instead, she cited to it for the first time in her petition for review before the commission. But the commission's role at that stage is to weigh the evidence presented at the arbitration hearing, and the Act and its regulations prohibit parties from introducing new evidence before the commission at that stage. So, in brief, the commission properly interpreted the Act's requirements, and its factual findings were not against the manifest weight of the evidence. I welcome this court's questions, if you have any. So it's your contention that the notice that was, I think, first appended to materials in the trial court, that that is not something we can take cognizance of? That's correct, Your Honor. Why not? So, under the Act, the evidentiary material that a claimant is required to, that a claimant wants to use to support her claim in an adjustment of claim proceeding must be presented at the arbitration hearing. Once the arbitration hearing has concluded, and the case goes to the petition for review stage, the parties cannot present any new evidence to the commission. And upon review, this court likewise only reviews the commission's decision and the evidence at the arbitration hearing as well. So it was improper for a plaintiff to present that evidence both before the commission and as well as the trial court. If it had been, according to you, properly noticed by the trial court, would it have proven anything? I think that's an interesting question, Your Honor. As you know, the commission didn't rule on that, so I think it would, neither the arbitrator nor the commission ruled on that. So we don't know what the arbitrator or commission would have thought about whether that satisfied the preponderance of the evidence burden. However, I would point out, as we mentioned in our brief, that plaintiff far overstates the probative value, if any, of this notice. Plaintiff, I think, refers to it at times as a verified finding of the commission. That is not a correct characterization of the notices that plaintiff was sent. Those notices discussed alleged noncompliance for certain periods and provided G4 with a 30-day period to submit evidence to the contrary, evidence that it did, in fact, have coverage. So those notices don't conclusively establish anything, and they certainly don't establish that the commission, you know, a panel of commissioners, found anything. Could you enlighten us as to the procedure of this notice? From where does it emanate? So I believe that this, so it was a notice sent by the Compliance Division. That Compliance Division was previously housed, like, within the commission, like the agency of the commission. It was moved to the Department of Insurance in 2021, and now is, they basically picked up the whole thing and moved it over to the Department of Insurance in 2021. And so my understanding is that is a notice that is sent that can sort of serve, you know, it's just, it's notifying the employer that if the employer does not submit proof that it is, in fact, covered, that the Compliance Division may initiate noncompliance proceedings, which would involve a formal hearing before the commission, in which a panel of commissioners, you know, the prosecuting entity, which is the Department of Insurance, would present evidence of whether that the employer was not in compliance with the act. And then the commission, a panel of commissioners, would rule on whether or not the employer was in compliance with the Workers' Compensation Act. So, in other words, you're saying that every employer in the state of Illinois must submit proof of workers' compensation coverage? Is that right? Generally? I believe that that is a requirement under Section 4A of the Act. And so if they do not receive that, some type of, I assume it probably comes from a carrier, you know, ABC company has workers' compensation coverage, and they send that to that agency, so to speak, okay, then that's, I mean, how much oversight is there really from this agency? So, I believe that the, how this usually unfolds is, so, in Illinois, we sort of, the commission sort of relies on the, heavily on the NCCI, the National Council of Compensation Insurance, to sort of, like, maintain these records. So, an employer would submit, just as Your Honor suggested, a policy information page of their workers' compensation coverage policy to the NCCI, which maintains these records. And then, so the NCCI, they're required to do that, and the NCCI then could issue, you know, upon inquiry by an interested party, could issue a notice saying, yep, they, you know, they do have workers' compensation insurance, or a certificate saying, no, we don't have any record that they have workers' compensation insurance. Now, I don't believe there are currently, like, fines for employers that, you know, I don't know how much, I don't think if any enforcement action there is, if an employer doesn't submit the policy information as they're supposed to, to show that they actually are, in fact, covered. So, you know, as far as how much oversight or compliance, I'm not sure about that end of things, but they're certainly supposed to submit their proof of coverage to the NCCI. Okay, okay, so basically, we know there's money in this fund, because we know employers, there are bad employers out there that are not following the act. And so those good employers basically pay for it, don't they? How does that fund come about? So, no, Your Honor, so the money in the fund comes from fines collected by compliance actions against employers that are found to not be in compliance. So that's where the money from the fund comes, from fines and penalties assessed to employers that have, like, through that Section 4D proceeding, where the compliance division of the Department of Insurance brings an enforcement action before the commission. And the commission decides that they did not comply with the act, they didn't have coverage, and assesses them a fine, and then that fine goes into the injured workers benefit fund. So there's no funding coming from premiums good employers pay? Not for this, not for the injured workers benefit fund. Okay, thank you. Thank you for clarifying that for me. Appreciate it. Counsel, so are you saying that the statutory scheme requires the employer to report in compliance with the mandatory insurance provision to the NCCI? I believe that is, I think that under Section 4A, you're supposed to report their coverage. You broke up just a little bit. Do you mind repeating that? So employers are required to have coverage under Section 4A, I believe, if I'm not mistaken. I agree. I agree. Are they further required to report it into the NCCI? I believe they are. I think that the statute might say to report that they are required to report it. And that is under the relevant regulations, I believe is done through submitting a proof of policy coverage to the NCCI. Thank you. So, is there is there any scenario where the commission should Suspante consider its own compliance records? Hold on, you're breaking up a bit. Oh, I'm sorry. Yeah, just keep letting me know if that's happening again. I'll try to speak slowly, maybe so we can you guys can get more of what I'm saying. So I don't believe that is the panel of commissioners role in an adjustment of claim proceeding in an adjustment of claim proceeding. The panel of commissioners sits as a neutral impartial arbiter of the adjustment of claim application. The parties in that proceeding are, on one hand, the claimant. And on the other hand, the employer, or in this case, at the respondent, additional respondent of the fund as well. So those are the parties that the commission does not have the obligation or the burden to sort of look at its own records to rule one way or another. It's the commission's role is to evaluate the evidence that the parties present. Which commission? The workers' compensation commission. So they have an adjudicative role, right? Yes, yes. But if they have rules, or if they have a. Their own commission that maintains these records. Is it outside the realm of possibilities that they. Keep that for a reason, and it doesn't need to be cited to them if they already have that, that rule keeping. Or that record keeping role already. That they have access to. So, I suppose I have 2 responses to that your honor. So the 1st would be, I'm not sure that that is the commission has sort of like that record keeping role again. These are records that are these compliance proceedings would be the records of the Department of Insurance, not the commission when this arbitration hearing occurred. And 2nd, even if, you know, let's say that these were the commission's records. I don't think that an adjudicative body has the duty to sort of look back at its records in all of its filings going back many, many years when the parties have not cited that evidence to the decision maker. So, any more than this court has a responsibility to sort of just look through its own case law that has never been cited or beyond that. These are not even case decisions. This is a filing within a case essentially. I don't think that this court would have the duty to go back and look at what a party said in some case 9 years ago. Any more than the commission has the duty to go back and look what was said by some party 9 years ago. So, it's the party's duty to present that evidence to the decision maker. And in this case, it's the plaintiff's burden to do so because the plaintiff bears the burden of proof. All right, thank you. No further questions. I think you have a question. In an arbitration, such as the one that took place here, what is the role of the fund or in the attorneys for the fund? Are they in an adversarial role or a more neutral role? We've lost you again. Did you begin again in your response to the question? Go ahead. Okay. So, in the adjustment of claim proceeding. I think it is an adversarial role in the sense that the fund is the respondent. But I think that the funds in the statutory scheme, the purpose of having the fund as the respondent and the funds role in practice is to hold the plaintiff to their burden of proof at the adjustment of claim proceeding. Because under the statute, the adjustment of claim proceeding is the only opportunity for the plaintiff to establish their eligibility for payment from the fund. Because the statute instructs that the fund is only payable upon a final order of the commission in that adjustment of claim proceeding. So, that is where everything needs to be determined in terms of whether the plaintiff is eligible or not. And the plaintiff bears the burden of proof in that scenario. So, the funds role by being present is to ensure that the plaintiff carries the burden of proof to demonstrate their eligibility. But in this case, it was sort of an unusual ending to the arbitration. The arbitrator all of a sudden says, hey, proofs are closed. Hey, did I need evidence about no insurance? And then there's a discussion. The attorney for the fund kind of said, oh, I'm kind of smiling here. And then before anything more can be done, the arbitrator goes again, proofs closed. So, the issues, the arbitrator raised the issue, then shut it down. And the fund attorney seemed to be just fine with everything being shut down at that time. So, I suppose I would first say, you know, of course, I don't necessarily condone the informal tone with which things were said by counsel at the arbitration hearing. But I think essentially what she was saying was consistent with what I am saying to the court here, which is that the funds role in that proceeding is to hold the plaintiff to their burden of proof. And so, she was answering the arbitrator's question about whether testimony evidence was needed in the record and affirming that, yes, it was and that the plaintiff had not done that here. In terms of the arbitrator sort of abruptly ending things, I would emphasize to this court that plaintiff never asked for proofs to be reopened. There was no motion to reopen proofs. Plaintiff has not, didn't ask the commission for that. So, plaintiff didn't ask the arbitrator, didn't ask the commission, and didn't ask the circuit court either. And I don't understand to be asking this court either. So, you know, to the extent there's a question about whether the arbitrator perhaps should have reopened proofs or something of that nature, I don't think plaintiff ever asked for that. No, I would agree with you there. Whether the arbitrator indicated an openness to such a request may be an issue. But, yes, thank you, counsel. Thank you. Time to reply, counsel. Your time is up, but you'll have time to reply. Counsel Strong, you may respond. Thank you, Your Honor. Todd Strong for the widow in this case of Mr. Carpenter, Joyce Carpenter. I appreciate a lot of the questions that Your Honors have posed in this particular case. My background is 32 years of practice before the Illinois Work Comp Commission. I have tried a number of these injured worker benefit funds. I have worked with the compliance department. So a lot of your questions were geared towards sort of the practicalities of how the fund works, the role of the fund, what's going on here. I can tell you that the fund was created, I believe it was in 05 or 06. It's literally called the Injured Worker Benefit Fund. The treasurer in this case serves as a fiduciary, and that's their role as a fiduciary in this case, to make sure that any applications or requests for monies from an injured worker who is the victim of being injured on the job by an employer that did not perform their statutory obligation of purchasing workers' compensation insurance coverage. The employer in general typically purchases it from a Work Comp insurance company. The Work Comp insurance company, at the time of this accident, the compliance division was being housed at the Illinois Work Comp Commission, not the DOI. So at the time of this case, there was a verified pleading filed by the Attorney General's office against G-4, verifying that G-4, the employer, the respondent employer of the tow truck company, did not carry Work Comp insurance on the date of this death of the petitioner in this case. Is it in the record? Yes, Your Honor. So it's not in the arbitration record. It is filed and attached to my brief as argued before the Illinois Work Comp Commission, and then it's also attached to my brief at the circuit court level. And my argument and response, you know, the AG's office here this morning and in their brief argues that that's a proof element. I responded by saying it can also be considered a judicial notice. In other words, it's like I'm making a citation to another case. There's literally another case. That's a good question. What I'm looking at, maybe I don't have the complete submission that you say you put to the commission, but I see, if I just finish counsel, a notice of noncompliance. That says, yeah, you're required to submit it. You can ask for an informal conference. You will be notified basically. Oh, and it says failure to respond will cause us to be set for hearing. It doesn't sound final to me. Am I wrong? No, Your Honor. It's not. It's a verified pleading. So maybe there's proof elsewhere that they weren't found to be in noncompliance. In theory. Did you submit that to the commission? I submitted what you just referenced. I don't have that document in front of me, but that's what I submitted. There was no finality. The AG's office just never pursued and completed. It's literally pending at the commission as we speak. So there's two cases here we're talking about. So there's the compliance case that gets filed by the compliance department. In the background, what typically happens in these particular cases is, me representing the injured worker, I work with and in conjunction with the compliance department. And that's filed before a commissioner on the review status call. So if the investigator for the compliance department has reason to believe that the employer really does have insurance that has not been filed, maybe somebody forgot to file the proof of insurance, maybe there was another carrier, maybe there was a gap in coverage. I'll work with the compliance officer or the compliance investigator, rather, to try to, I mean, our goal is to find insurance coverage so we don't have to make a claim against the fund. So that's kind of the reality. In this case, to answer your question more directly, there was a compliance case filed very early on in this case that was never followed through, never acted upon. So it's just the verified pleading that I'm making reference to, the document I think you decided to. And so in this particular case, what I'm suggesting is this was never known to be an issue. So when you're going to arbitrate the case on the application, as the way it really – Let me get into that. Can I just ask that same question that I asked of your opponent? Is she – I'll recap it. Is she correct that the regs require the employer – I'm not sure counsel expressed complete certainty about it, but I did understand Ms. Sherman to say that the regs require employers to report in compliance to the NCCI. Is that true? Maybe you don't think it matters either, and that's a fair answer. I think it does matter. It has at least some relevance or some bearing. So you're very close in your answer. The regs don't require filing of compliance with the NCCI. So the NCCI is not an agency of the state of Illinois. It's a not-for-profit company that basically serves as a database. But what the regs report is – the proof that, hey, this employer has work comp. At the time, it was supposed to be filed with the commission. So, like, you could go on the commission's website this morning and look at the website, and there's a link to the actual records. And so what the state of Illinois does, whether it was with the Illinois Work Comp Commission or now the DOI, is there must be some agreement with NCCI. So the state of Illinois delegates that, even though the employer is statutorily or regulatory required to file that notice, the state of Illinois sort of delegates that record-keeping function to the NCCI. And then it's a little bit of a – Excuse me. Please finish your answer, but let me throw this question. Is it 4D that says proof, a request of NCCI and a response back that there's no insurance? Is proof that there's no insurance? Section 4D is silent to that. Also, there's no rules governing practice before the Illinois Work Comp Commission that are any stated rule. And that leads me to my statement that came up in the reply brief for the first time is appellants argue that it's a longstanding precedence or commission policy to require this. I can tell you that – I'm sorry, to require what council? To require the filing of an NCCI certificate of noncompliance. So if I had a case and there was a question about insurance coverage, we would basically reach out to the NCCI to get a certificate of noncompliance. It's a certified thing that comes in the mail with an official stamp. And then that is given to the state, and then that creates a rebuttable presumption of noninsurance. And so that – and then it shifts the burden then to – in this case, it's not a burden shifting, but it's just one method in which you can prove noninsurance if there's – because you're trying to prove a negative. What the state is – the treasurer is arguing is it's the burden of the injured party to prove a negative, essentially, to prove that an employer didn't. And that is well briefed in my brief and in counsel's brief in this particular case. But the reality is they're saying that there's a legal requirement written somewhere that I have no idea and is not incited in the brief. And that's what the trial court, in this case Judge Davis, kind of honed in on is, okay, there's this written rule or this requirement where I think counsel this morning stated – and I'm quoting her in her oral arguments, she just made, quote, must be presented at arbitration. I mean, where is that rule? Where is that stated requirement? And then she's – I think she argued, as I quote, that there must be proof of that presented. There is no – there's nothing in 4D that says that. There's nothing in the rules governing practice that says that. There's no appellate court or a Supreme Court authority that says that. And there's nothing – there's no stated or written policy of the commission. So policies of the commission or official policy – public policy declarations are required to be made public so that everybody's on equal footing here as to what the requirements are to establish non-insurance. The Act charges the Department of Insurance compliance with the responsibility of determining, does this employer have insurance or not have insurance? In this particular case, they just – they filed the initial pleadings to start that process, which is a totally separate case. The injured worker is not a party in that action. It's filed by the AG's office on behalf of the – it's now filed on behalf, I believe, of the – and Samantha can correct me if I'm wrong. I believe it's filed now on behalf of the Department of Insurance Division of Compliance for Workers' Compensation. At the time of the accident, it was the compliance division of the Illinois Work Comp Commission. So that adds an element of confusion in this case that at the time of this event occurred, it was all in the wheelhouse of the Illinois Work Comp Commission. It is now – I think it was changed – I think I have it cited in my brief. Seven or eight years ago, there was a shift in the statute that shifted that. There was a wheelhouse of record-keeping that Justice Barberos was asking about, and it shifted it to the DOI. So there is a record-keeping component that is a public record and of which the commission is a party to. So the commission is a party to this proceeding, or at least it was at the time of this compliance case was filed, that, hey, there's non-insurance. The AG's office represented them in the compliance case. That's a public record. It's a case by which this court, and it's cited in my brief, can at least refer to as there being some evidence. As a matter of practicalities, what typically happens in this case, which did not happen in this particular case, is before the case is ever tried in front of the arbitrator on the application, the AG's office, the investigator from the compliance division, and the petitioner's lawyer, which would be me, have a discussion. Hey, is there any question that this employer didn't have any insurance before a hearing is even scheduled? And in this case, there was never any indication whatsoever. There was a compliance case on file. Nobody ever raised the issue. It's not on the stip sheet, which is another one of my due process arguments that I made in the brief. The issues to be proven up are actually on the commission form. I think it's IC9, if I recall. It's basically what we refer to in the field as a stip sheet. We call that the stip sheet. Is this issue on the stip sheet? So there is not an issue that puts the burden of proof or an element to be proved at the time of arbitration that you have to prove a negative. So in reality, that never occurs. The appellant actually cited one of my cases as one of these arbitration decisions from the Rumsberg file. That was a case that I personally tried. And the employer has made a party to the suit. And usually the big thing on these cases, you got to give notice to the employer. You got to have them served. And that's because a lot of times the employer just doesn't show up. In the Rumsberg case, the employer, and it was just a small, I think it was a small little trucking, mom and pop trucking company. The employer shows up to apologize on the record, indicating that, hey, you know, I slipped up. I didn't get work comp insurance. There was a gap. And, you know, there was an explanation. I don't think that that's required. That gentleman just happened to come and testify to that particular fact when I tried that case as an example of how some of this stuff comes up. But as a practical matter, you're trying to prove a negative. The only mechanism set up, I agree that the NCCI Certificate of Noncompliance is typically used in the field and practice on these. But there's usually a conversation that says, hey, we're not sure if there was insurance in this case or not. A lot of times it's a large trucking company that looks like a big outfit and everybody's sort of in disbelief. Like, you know, there's no comp coverage here. And so you start to question. It was covered with a stipulation, but apparently it was not. I'm sorry, Your Honor, I didn't catch your point. I beg your pardon. I'm hearing you say, well, oftentimes what happens is we have a conversation. I'm assuming you mean with the parties. Is there or isn't there insurance? With the AG's office. At that point, I'm guessing they could have stipulated that there was no insurance if they had felt that was justified. But apparently, I'm hearing you say that conversation didn't occur. In this case, there was a conversation that did occur that's not part of the record, that it was not a question that there was insurance. This was a very small mom and pop tow truck company. There was no record that was on file at the commission offices. You know, there was no evidence of any insurance. The employer in this case came. She testified briefly. We didn't have, I don't have her exact quote. I've got her exact quote in my brief. Something to the effect of we didn't have coverage. And then she goes on and talks about, well, I'm talking about the vehicle insurance or something to that effect. The ending of this case is troubling by the arbitrator. You know, that he abruptly closed proofs on this when he himself sort of raised an issue and had, it's clear that he had some uncertainty in his mind about, hey, was this off the record conversation ever had? Is there a question here? There's not insurance. And then even the employer tried to chime in to clarify her remarks or her testimony, and then he cut her off. He did not allow her to speak after, frankly, it appeared to me from the record you had rested. When he, and I've got the transcript here, but, but when thereafter, he does raise this question, does there need to be proof or something to that effect more or less? And I read the record as clearly having you say she testified there was no insurance. And then after that, after the issue was brought to your attention, after you assured the arbitrator that the Ms. Grable had testified she had no insurance, he said, excuse me, he said proofs closed. Are you, are you saying, it appeared to me you were speaking to the arbitrator's question, was there proof of no insurance? And I don't think he meant car insurance. I think he meant workers' compensation insurance. And then again, I read your statement back is, she said there was no insurance. And it's after that, that he says proofs are closed. Yes. And I will add the, the AG at that point had made it clear. They saw it as a contested issue and anyway, I'm sorry I interrupted that last bit. You're exactly right. With the exception of this was tried. The case was tried in front of the arbitrator by a younger associate of my office, Mr. My camp. Oh, I'm sorry. You're right. That's okay. He specifically did say, quote, she testified, she didn't have insurance. Then the arbitrator says, then proofs are closed. And the record was cut off in this particular case. You know, we talked about the role of the fund in this case, the role of the fund is should be neutral in this case under the statute. In this case, there was almost an adversarial advocacy to defeat the petitioners claim. You know, I think that the respondents counselor, they from the agency's office who tried the case says, quote, I kept my mouth shut or something to that effect. It was a clear strategy when the reality is it's the fiduciary fund has, or owes the injured worker of fiduciary interest as well. They serve as a protector of the fund and I get that. But at the same time, they have a fiduciary duty to an injured worker to say, wait a minute, timeout. Is there a question about insurance rather than keeping her quote mouth shut as a matter of strategy? So I, I apologize for going over your honor. And I see the red light here. You have a concluding statement. I just have a concluding statement that I would respectfully request that your honors affirm the circuit court trial courts finding, which overturned judge Davis overturned the findings of the commission, that there was no law that requires proof of this at the time of arbitration. He went through it very thoughtfully and very thoroughly. The oral argument in that case took about two or three hours. I think it was maybe, maybe two hours, but it was a long oral argument. He went methodically through everything that I can tell that your honors are doing in this case, just try to say, try to understand what's the mechanism. So I just ask that his order be affirmed. Thank you, your honor. Questions for the questions from the bench. If any. Hearing none. Thank you. Counsel. Counsel Sherman, you may reply. Thank you. So I suppose I would first say that council talks a lot about his experience and how these things normally play out. And, you know, as it talks about how this isn't a long established requirement that the commission has applied, I would point out that we in our opening brief cited a number of commission and arbitrator decisions where this requirement has been applied. And in. Let me ask, is that allowed to cite, is that allowed to cite commission and arbitrator decisions as precedent to this court? Are you allowed to do that? So your honor, to be clear, I don't think that I'm citing them as precedent to this court, this court, you know, they're not precedential. This court is certainly not. So I, there you have, they have value in the sense that plaintiff argued, argued that this was a brand new requirement established for the first time in this case. We wanted to demonstrate that that was not the case. And in plaintiff's response brief, he, you know, he's talked a lot here today about how that isn't the way that these cases go before and that nobody submits these things, but he doesn't cite a single case to the contrary coming from an arbitrator or the commission where fund liability was found, where there wasn't any evidence in the record. So. Can you cite them as precedent? I'm hearing you say, well, no. I don't, I don't think they're precedent in, in the sense that they're controlling on this court for their legal analysis. Can a person cite it as precedent? No, your honor. All right. So if you're not citing it as precedent, are you citing it as evidence? We're citing it as certainly, I mean, as evidence to, you know, combat petitioners belated sort of statements that this is a new requirement, but it's not really in our record, is it? It's not. I mean, these were cases, many of which were cited before the commission on the petition for review. So they're in the record in that sense, but they're not, they wouldn't be in the evidentiary record before the arbitrator. Certainly your honor. I'm confused at this point. That's why I tried to interrupt the line of questioning. What are you referring to commission decisions or commissions of our court or decisions of our court? So I think, so I was referring to, so plaintiff made the argument before the commission and before the circuit court and before this court, that this is a brand new requirement that was introduced for the first time in plaintiff's arbitration. And that is why in plaintiff's view, this, you know, that it was inappropriate or, you know, I think he raises, you know, a due process claim. So the only purpose of citing those decisions was to show that it is not, that was not true. And plaintiff does not provide any evidence. Which decisions counsel are we talking about? Rule 23 orders of our court or decisions from the commission? Decisions from the commission, your honor. We never look at those. We have, they have absolutely no value, swissory value or precedential value. They're commissions of their decision commissions. Sure. Certainly. They're essentially agency practices. Certainly. We don't consider those. This court doesn't consider those. Certainly your honor. So, but I think that that goes both ways then. So if this commission does, if this court does not consider them, Well, the way it goes both ways, as you say, we don't consider those. We don't start pulling out decisions of the commission that seem to be contradictory or contrary. You see what I'm saying? That's the answer you have. They're nothing that our court considers. I don't. So to be clear, I don't think that this court needs to rely on those decisions to affirm Excuse me, rely. We don't even listen to them. Certainly. So I think that is completely fair. This court wants to completely disregard those decisions. I do not think it is necessary to. Certainly your honor. So there are other reasons why the commission's decision should still be affirmed in this case. So even if this were, let's say a brand new requirement that the commission implemented for the first time in this case, agencies are permitted to interpret the statute and apply it and to change their interpretations of the statute. So I see my time is up. Would you like to sum up? Certainly your honor. So we ask that this court affirm the decision of the commission. We think that this requirement is very clear in the text of section four D of the act. So the commission's legal, legal principles are strong and the fact as far as the evidentiary record in this case, it clearly shows that the commission's factual findings were not against the manifest weight of the evidence. Questions from the court? No. Okay. Well, thank you counsel both for your fine arguments in this matter this morning, it will be taken under the advisement, a written disposition shall issue. And at this time, the clerk of our court will escort you from our remote courtroom. Have a good morning. Good day. And we'll proceed further. Thank you. Thank you, and compliments to the clerk. She made this process very soothing and relaxing and, you know, you know, the nerve nervousness of the technology. She's very good. Well, we appreciate that. And I know she appreciates that. Thank you."
}
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}